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Veto points and democratic theory

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I wasn’t going to post this, because of the obnoxious policies of academic publishers that would normally prevent me from providing an open link, but I’ve learned that Cambridge has opened the gate to the June Issue of Perspectives on Politics for the month of July. So for any interested parties, Scott and I have an article that addresses some themes we occasionally address here. (If you are reading this 10 days or more in the future, the link presumably won’t work anymore, but feel free to contact me for a copy of the paper if you want one.) We begin with the increasingly widely acknowledged problems with the “countermajoritarian difficulty” framework for thinking about judicial review in democratic systems. The problems are familiar to many of you: judicial review is rarely particularly countermajoritarian in practice; legislatures fall short of the mark as a majoritarian institution for all manner of relatively predictable reasons, and democracy and majoritarianism aren’t synonyms to begin with.

This critique is correct, but it doesn’t really tell us much about the democratic legitimacy of judicial review, beyond rejecting a particular kind of argument about it. In a paper we really should have cited, Michael Dorf points out that this line of work actually creates an additional set of questions about the legitimacy of judicial review—if it’s just another majoritarian institution, what’s the point? (We reject the most common strategy for answering this question, which roughly takes the form of “We need judicial review to be a bulwark against X, so therefore it’s legitimate.” We reject it because we’re looking for an institutional answer, not a virtue-based one about how judges ideally ought to behave.) Our answer, in a nutshell, is that in focusing on judicial review narrows the frame excessively. Judicial review is an example of a larger phenomenon, namely, a veto point. Veto points are things contemporary democratic systems invariably seem t have, so unless we’re doing a particular kind of ideal theory not well suited for institutional analysis, we can’t simply declare veto points undemocratic and be done with it. So rather than ask “is judicial review democratically legitimate?” we need to take a set back and ask “What makes a veto point more or less democratic, relatively speaking?” The rest of the paper is our first take at playing around with this idea: we propose a not-intended-to-be-exhaustive list of five desiderata for relatively democratic veto points, and give a quick and dirty speculative assessment of judicial review’s relative merit on each count, contrasting it with a few other veto points along the way. Our conclusion: not perfect, but not bad. One idea we play around with that I expect to be controversial is that judicial review may be a more democratic veto point than bicameralism. I’d pretty strongly defend that in the context of the US, given the obvious democratic shortcomings of the senate. A reasonably democratic legislature is a much tougher call.

In addition to its present incarnation, this is also part of an in-progress book manuscript we’ll be workshopping in a few months, so any thoughts, observations, feedback, etc would be welcomed.

[SL] I should probably mention that this paper is something of a sequel to one we published a few years ago laying out our basic argument about the uselessness of the “counter-majoritarian difficulty” framework. If you’re considering perusing both it probably makes sense to start with this one.

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  • jim, some guy in iowa

    djw: the thumbnail bio says you pay particular attention to neorepublicanism- could you explain that a bit?

    • Vance Maverick
      • djw

        This deserves a longer reply but basically yes, this.

        • Ahuitzotl

          That was a very odd description, as it actually omits any specificity of what civic republicanism is, to contrast with civic humanism – or did I miss something?

          • gmack

            This sub-section simply means to identify the main outlines of the “republican revival.” This revival contains two basic strands, and they differ primarily in terms of their views on politics and its relation to freedom: One (and the older of the two) is the civic humanist tradition, which is humanistic in the sense that it holds that politics is a practice in which people realize their specifically human traits. The other (and more recent) aspect of this revival eschews this humanistic orientation and offers a different conception of human liberty. The slogan of this latter orientation, at least for many of its adherents (including Scott and djw, I think), is “freedom as non-domination.” Republican politics, then, is not a matter of developing civic virtues that are an essential part of human flourishing, nor is it even a matter of willing the laws that affect one; rather, it is more a matter of contesting modes of arbitrary domination, and maintaining institutions that can prevent/mollify it.

            So on this newer interpretation of republicanism, things like active political participation, civic virtue, and the like (all of which were central to the earlier civic humanism interpretation) are important, but not the sine qua non of politics. Broadly speaking, such practices are instrumental–valuable insofar as they help prevent arbitrary power/domination.

  • Murc

    I’m just a layman, but… institutionally, isn’t the point of judicial review to lend legitimacy to certain undemocratic aspects of constitutional systems?

    Constitutions are inherently undemocratic; they’re essentially the establishment of legal regimes that the people drafting them consider to be so essential to the establishment of an ideologically acceptable nation-state that they are not to be subject to change without large supermajorities. If this is your goal, you need an independent institution that’s widely regarded as legitimate to be charged with interpreting how that constitution interacts with regular laws. (It has to be independent because if you vest that power in the legislature you might as well not have a constitution, because the legislature will of course deem every law it actually passes as constitutional.)

    And the logical institution to vest that power in is… an independent judiciary.

    • troll

      subtext becoming text trolling

      • Peterr

        Ditto for the African-American first graders in Topeka, circa 1950. Damned activist judges, going against Teh Will of Teh (White) People.

        /snark

    • gmack

      Constitutions are inherently undemocratic

      That’s one common reading, but not necessarily an accurate one. There’s a very important strand in democratic theory that holds that constitutionalism and democracy mutually presuppose one another and therefore are not in opposition. (That’s not djw’s orientation; as I recall, his defense of constitutionalism rests not on the deliberative democratic “co-originality thesis” but on the neo-republican notion of democracy as non-domination).

      • Scott Lemieux

        Yes, we rest on non-domination. I don’t think there’s anything inherently undemocratic about constitutionalism — this idea rests on the fallacy that democracy means nothing but particular majority votes — and there are numerous forms of constitutionalism that have weak or non-existent judicial review.

        • Murc

          and there are numerous forms of constitutionalism that have weak or non-existent judicial review.

          I confess to being baffled by how this works.

          If you have a constitution, but the legislature is the sole arbiter of what it means and what laws comport with it, then you don’t actually have a constitution; you just have a body of laws.

          There’s nothing wrong with operating that way, but why go through all the folderol of having a constitution to begin with if that’s how you plan to roll? Just write a bunch of laws and be done with it.

          • Lee Rudolph

            If you have a constitution, but the legislature is the sole arbiter of what it means and what laws comport with it

            That is of course not the only alternative to judicial review: the executive might be the sole arbiter.

            I don’t say that’s a good alternative, only that it’s another possibility. (And probably others could be imagined.)

            • Murc

              True, but at that point the executive is preforming the function of an independent judiciary. (This assumes an independent executive.)

          • Scott Lemieux

            If you have a constitution, but the legislature is the sole arbiter of what it means and what laws comport with it, then you don’t actually have a constitution; you just have a body of laws.

            As the British system shows, this simply isn’t true. (And, really, the difference between American and British constitutionalism is more degree than kind. Plenty of elements of American constitutionalism rely on norms.)

            • Murc

              djw and I have been round and round on the matter of the British a whooooooole bunch of times. I mean, the man is clearly more informed on the subject than I am, but I keep slamming into the wall of “that’s a norm, which means it can simply be ignored at any time, and therefore doesn’t count.”

              It might be me. Hell, it probably is me. But… well, I’m 34. This means that all of my political formative years took place in an environment where “governing norm” meant “quaint notion from the past that will be dynamited the second it is inconvenient.”

              I don’t trust governing norms. They’re a kind of… shared illusion. They work right up to the point someone decides not to share in it anymore, and then, oops!

              • Scott Lemieux

                But a written Constitution — even enforced by judicial review! — doesn’t solve this problem. No constitution, whatever the ratio of written to unwritten elements, has its own police force.

                • Murc

                  Courts seem to be reluctant to issue actual legal rulings, especially ones that go against the state and the laws the state propagates, on the basis of informal norms, tho, which makes them straight-up ignorable under color of law in a way that stuff that is written down isn’t. Indeed, I would be incredibly concerned about a judicial system that was ruling against explicitly passed laws based on past norms; it would seem quite arbitrary and lawless to me.

                  It also seems to have some effect on public perceptions of legitimacy. You can ignore a governing norm without being a lawbreaker and, indeed, mock and deride your opponents for being so naive as to restrain their exercise of power simply because it had always been done that way. It is much harder to ignore an actual law or explicit constitutional provision; you have to do fancy things like subvert the judiciary or simply engage in open lawlessness.

                  I dunno. When people say “unwritten constitution” what I hear is “we have an incredible kludge that only works because we’re so damn polite.”

                • Scott Lemieux

                  Courts seem to be reluctant to issue actual legal rulings, especially ones that go against the state and the laws the state propagates, on the basis of informal norms,

                  But, again, you’re just assuming that 1)judicial review is the only means of enforcing constitutional requirements, and 2)that courts will reliably enforce constitutional requirements. The actual practice of constitutionalism makes both premises untenable.

                  You can ignore a governing norm without being a lawbreaker

                  This is also begging the question. A British government that refused to resign after a lost vote of confidence would be seen as lawbreaking even if there behavior was not inconsistent with some other legal text.

                  When people say “unwritten constitution” what I hear is “we have an incredible kludge that only works because we’re so damn polite.”

                  This is no less true of written constitutionalism. All constitutionalism is a kludge.

                • Murc

                  But, again, you’re just assuming that 1)judicial review is the only means of enforcing constitutional requirements

                  Wait… what? I am? I don’t think I am.

                  What I’m assuming is that if your body that decides whether laws are consistent with the constitution is the same body that makes laws, you effectively don’t have a constitution; you have a body of laws. Because no lawmaking body is going to go to all the trouble of passing a law just to immediately turn around and declare it inconsistent with the constitution, right?

                  2)that courts will reliably enforce constitutional requirements. The actual practice of constitutionalism makes both premises untenable.

                  I don’t assume this at all and I’m wondering where the heck you’re getting it from.

                  A British government that refused to resign after a lost vote of confidence would be seen as lawbreaking even if there behavior was not inconsistent with some other legal text.

                  Wait, wait. Hold on. British Cabinet Ministers have to actually resign before they can be replaced? Parliament can’t just say “screw you, these others guys have your jobs now?” And Parliament doesn’t actually have rules in place that require Cabinet Ministers to resign if they lose a confidence vote?

                  Lord love a duck, the very thought of running a government on a model like that gives me hives.

                  Although thinking about it, I shouldn’t be surprised. I remember during the Rob Ford blowup in Toronto, I was talking to Canadian friends and asking questions like “Don’t you guys have laws for this sort of things? In most American cities a guy under this kind of indictment or investigation would be forced to step down.” And the response “Well… no, we don’t. We’ve never needed them before. The assumption always was that they’d step down voluntarily or come to some sort of accommodation with the city council. Our system of city government isn’t actually set up to accommodate a Mayor who literally doesn’t give a fuck; there’s not a formal mechanism in place.”

                • Manny Kant

                  British cabinet ministers do not have to actually resign before they can be replaced. They can also be fired by the monarch, although I believe 1834 is the last time that happened in the UK.

                  The Australian constitutional crisis of 1975 revolved around this issue, in fact. Basically, Gough Whitlam’s Labor government had a narrow majority in the House of Representatives, but not the Senate. The Liberals who controlled the Senate decided to block supply (that is, to refuse to pass government spending bills). This was a strong violation of existing norms in Westminster systems that the upper house not block supply. I believe the last time that happened in Britain, in 1909 (over the “People’s Budget”), it resulted in the Lords getting emasculated, but in Australia, the Senate still had an absolute veto.

                  The goal of the Liberals in the Senate was to force Whitlam to call new elections, which they thought they would win. Whitlam, though, that this was illegitimate, and instead asked Sir John Kerr, the Governor-General to hold a half election for just the Senate, in the hopes of kicking out the Liberals and having united government. Instead, Kerr fired Whitlam, appointed the Liberal leader as Prime Minister, and dissolved parliament to hold new elections, which the Liberals won.

                  This was, of course, incredibly controversial, and Labor supporters in Australia, as far as I can gather, still view Kerr’s actions as illegitimate. Liberals argue that Whitlam was passing a whole ton of legislation with very narrow majorities, and also trying to change the constitution to give Labor a permanent advantage, and that they were acting to protect the constitution. It’s complicated, at any rate, but it demonstrates that the sovereign does have the right to dismiss ministers.

                  I rather suspect that if a prime minister lost a vote of confidence and refused to resign or hold new elections, most people would consider it legitimate for the queen to fire the PM, appoint the opposition leader as caretaker PM, and dissolve parliament for new elections. So there are some safeguards. Of course, if the Queen or Governor-General sided with the PM, there’d be problems.

            • Ahuitzotl

              But … the British don’t have a constitution in the first place: but they do have judges who are willing to act as though they did, til things wind up in the House of Lords judicial committee ?

              ETA: Sorry, I’ll shut up, I’m clearly way out of my depth here

    • Vance Maverick

      Not sure how a constitution is more undemocratic than any other veto point: it’s one indirect expression of the will of the people inhibiting another.

    • elm

      Democratic need nod mean “majoritarian.” Constitutions and judicial review may constrain majoritary rule (as it was intended by Madison et al in the US) but that does not make it inherently anti-Democratic.

  • Denverite

    One idea we play around with that I expect to be controversial is that judicial review may be a more democratic veto point than bicameralism. I’d pretty strongly defend that in the context of the US, given the obvious democratic shortcomings of the senate. A reasonably democratic legislature is a much tougher call.

    Sorta kinda (not really) related, but it might be interesting to compare Nebraska (and its unicameral legislature) with some of its neighbors to see if judicial review is used more heavily in the absence of the standard bicameral veto point.

    • ajp

      Are the legislative districts in Nebraska proportional to population? I don’t see why proportional representation necessarily follows from “unicameral” even though we seem to assume that here. But it looks like it is.

      I think there are a few things you need to address-the fact that the Nebraska legislature is “nonpartisan” but I think that’s more of a wink-wink type thing. It’s also a part-time legislature. I wonder if that has any demonstrable effect.

      Nebraska is also the smallest state legislature-probably not a detail I would ignore. Might be interesting to compare it to say New Hampshire.

      I would love to see that sort of comparison but sadly we have just the one unicameral state legislature, I dunno how much you can ascertain from that.

      • djw

        Are the legislative districts in Nebraska proportional to population?

        Yes. All 99 state legislatures are, per Reynolds v Sims (1964). Prior to that ruling there were a bunch of states that effectively had rotten boroughs (a few hundred people getting a Senator).

  • Gregor Sansa

    This is interesting stuff.

    My angle of approach to these ideas is — you guessed it — voting system reform. I’ve had some differences with Erik in the past, where he’s said that PR in America would mean a lack of a majority party in the House, thus creating an additional veto point as coalitions would have to be re-formed for every initiative.

    Concretely speaking, what would a PR house of representatives look like?
    -Because it would overcome natural and artificial “gerrymandering” (that is, vote dilution and overconcentration) the current median voter would probably have 4-6% more votes to the left of them.
    -Because it would encourage higher turnout, and because turnout is currently higher and thus could increase by less on the conservative side, that would put another 1-4% more votes to the left of the current median, for a total of 5-10%
    -Because it would be based more on explicit post-election coalition-building, rather than implicit pre-election “big tent” coalitions, there would be more representatives who were more ideologically extreme (in various directions) and/or more single-issue-focused. (Note that right now there not a big lack of extreme right congresspeople, so this would probably be felt more on the left). Plausibly, there could also be centrist parties, so that the ideological distribution could lose the dip in the middle that makes it bimodal.
    -Because being a “spoiler” would not be nearly as much of a danger, and because having more parties would make winning a primary easier, money would be if anything be less important. An insurgent, on-the-cheap campaign would not be frozen out as “unviable”.
    -In particular, there would be significantly more populists of various stripes, from leftist (throw the bankers in jail!) to rightist (bigger fences!).

    So in the end, instead of 50.5% Republican/49.5% Democrat, it would probably be around 35% each, with the remaining 30% split to something like 10% crazy rightists, 5% centrists and quasi-centrist single-issue independents, and 15% progressives more-or-less evenly split between pragmatism and purism. So one way to pass legislation would be to get all the Democrats, most of the centrists, and the pragmatic half of the progressives; another way would be to get all the Democrats, all the progressives, and a few of the centrists.

    I see Erik’s point that the lack any one party able to whip legislation to passage would arguably make the House more of a veto point. But note that party cohesiveness is very far from perfect even in the current system, so the difference in that respect isn’t that huge. On the other hand, a more-democratic (small “d”) system that reflected America’s ideology more faithfully would have significant advantages in terms of “democracy against domination”.

    …I could go on but I should probably hit “submit” now.

    ETA: I was only considering proportional representation above. Note that single-winner reforms such as approval voting would probably reduce the veto power of campaign contributors and of party structures, without electing as many extremists as PR. It doesn’t solve gerrymandering but it’s even more clearly a net good in the “democracy against domination” framework of this paper.

    • Brien Jackson

      Not that it invalidates its benefits by any means, but…proportional representation is pretty inherently elitist. Party leaders, in particular, get to wield outsized influence both through the ability to select the party’s slate and the requirements of the coalition building process.

      • elm

        That’s a little over stated, I think. Plurality systems can have very tight elite control over nominations (think Britain) while open-list PR systems can have lots of citizen control over the party slate.

        I’m not sure how formal coalition building is more elite driven than the informal type that occurs in, say, the US where coalitions often have to be formed on an issue by issue basis and the negotiating is done by party leaders and Members of Congress.

        • Gregor Sansa

          You beat me to it.

      • Gregor Sansa

        Aak.

        Closed slate PR is the stupid kind. With cutting-edge PR systems such as PAL representation, you can have open slates, simple ballots, factional control, full proportionality, and local accountability (“your” rep who is the same as your same-party neighbor’s). Even 20 years ago, you could get at least any 2 of those, and in many cases 3 of those.

        As to “the coalition building process”, I think you’re assuming a parliamentary system. In the US presidential system that is not a thing, even if we had PR. Each piece of legislation could have its own set of coalitions, which is only “elitist” insofar as any representative government is.

        • sonamib

          So you’re imagining a sort of coalition presidentialism like in Brazil? The political system in Brazil is a huge mess, there are almost 30 different parties in Congress and any functional governing coalition needs about 10 parties. Of course, the Executive can do some things by itself, but it’s really hard when it cannot find a majority in Congress. That’s the trouble president Dilma Rousseff is finding herself in.

          Of course, there’s no reason why the US should end up like that if it adopts a PR system for its Congress. Some people argue that Brazilian society is really divided and that politics would be complicated in any kind of system. Or maybe you can say that there is already maximal gridlock in the US Congress and that it can’t get worse.

          But I’m just saying that PR might lead to a confusing system that is poorly understood by the electors. I mean, how do you assign blame when there are 10 parties in the government?

          • Gregor Sansa

            Roughly, yes.

            I think both of your points about why the Brazil example should not be too scary are good, though. The US already has weak party discipline, so assembling the votes for something is about getting a diverse crowd to agree, not just getting a party power broker to sign on. That wouldn’t change much. And the US already has two strong parties, which (even with better single-winner voting systems) would still dominate (>90%, though perhaps not >98%) at the presidential and senatorial levels. So devolving into a Brazilian chaos isn’t gonna happen.

            Furthermore, it’s possible to design a proportional system that still has centrist incentives. The cutting-edge PR systems I favor involve delegated votes (local checkmarks or nonlocal write-ins) feeding in to an STV-like system of vote transfers based on candidates’ predeclared preferences. In such a system, it’s easy to have a “direct vote” quota of, say, 33%, so that any candidate who isn’t locally one of the top two will get eliminated. That would mean two big parties and no more than 3-4 little ones, plus some charismatic independents; nothing like the 30-party situation in Brazil.

            And since the STV would allow interparty transfers, votes for small-party candidates who did not meet the threshold would still have ideological impact. For instance, if the Vegan Party candidate was eliminated, they would have predeclared that their votes would go to the Green Party, and then to the Democrats; or if the Dominion Party was eliminated, they could have predeclared for the Republicans.

            • sonamib

              And the US already has two strong parties, which (even with better single-winner voting systems) would still dominate (>90%, though perhaps not >98%) at the presidential and senatorial levels. So devolving into a Brazilian chaos isn’t gonna happen.

              Yeah, I think path-dependency is a huge issue here. Brazil is the way it is because when democracy came back, a lot of major politicians decided to create their own party instead of joining an existing one. If there had been a little less in-fighting in the 1980s, things could be very different now.

              And indeed, there are lots of PR system that have very few parties. But the major parties’ dominance can be quite vulnerable. Spain used to have two parties (+ some minor regional ones), until the euro crisis hit them. Belgium used to have a three-party system until the flemish nationalists and the greens picked up steam. Now we have 9 major parties : (liberals* + christian-democrats + socialists + greens) x2** + flemish nationalists.

              *in the european free-market liberalism sense
              **x2 because there is one each for Francophone and Flemish people

              • Gregor Sansa

                I agree, party systems are more dynamic with PR. But the US wouls still have the Senate, where the 2 parties would be very hard to beat (even with better single-winner systems). And power in the Senate would translate to power in the house.

                (Not that the Senate wouldn’t be impacted by better voting systems. Senators would have to be more responsive/accountable to voters, and less to funders. But it would still be basically a two-party body.)

                • sonamib

                  To be clear : I actually agree with you, I think a PR system is the least bad way to elect a Parliament.

                  I mean, I talked about a lot of countries in my comments here, but the main lesson appears to be that politics is complicated where politics is complicated. The voting system has, for better or for worse, only a marginal effect. There are PR countries with both functional (Germany) and dysfunctional (Israel) governments, same with single-winner districts countries (compare and contrast France and the US).

                • Gregor Sansa

                  The important question isn’t whether PR can go wrong. It’s whether it does so less or less seriously than plurality (I’d say this is obvious), and more particularly whether it would go better in a specific case such as the US (again, I’d argue, even more obvious).

    • ajp

      As it is we already have factions within each major party. I am not a political scientist but I wonder if it would be democratically healthier for coalition-building to be more…overt? Because it already happens, it’s just perhaps harder to see if you don’t follow politics. Allowing the government to be built more…modularly instead of pulling the lever for D or R seems more satisfying, at least theoretically.

      • Gregor Sansa

        Right.

        It seems to me that some people oppose voting reform because it would help third parties and they hate Ralph Nader. But if third parties weren’t spoilers, their candidates wouldn’t be trolls like Nader. And the two parties would still be the two biggest, but it would be in proportion to their true numbers, not artificially inflated.

      • Ahuitzotl

        IANAPS ? I like it

        More seriously, the problem with overt coalition-building is that it IS overt. An awful lot of things get achieved by implicit support of people who don’t really realise what it is they are helping: on both the right and the left. Purity trolls aren’t just the purview of the extremes.

        • Gregor Sansa

          That’s true. But there’s at least two sides to that.

          If an idea gets embraced by a major party, it can get some extra mileage from the fact that the party’s voters didn’t necessarily realize they were signing on to that. And sure, sometimes that means good things for good ideas. But sometimes the ideas are bad. In fact, I think that things like TPP are a prime example of that; most people voting for Obama probably weren’t doing so because they hoped he would pass TPP, but that was part of the package they got, and that package is the way it is to a significant degree because of Obama’s “coalition building” (perhaps more financial than electoral, but coalition nonetheless).

          Furthermore, there are some ideas that consistently don’t get a fair shake in this system. Certain constituencies (like labor) can become too reliable a part of a coalition, and get taken for granted.

          And yes, voting systems can help with this. Proportional representation would increase the independence and thus the power of what are now “caucuses” in the House. And consider a single-winner system like SODA. This is based on delegated votes; imagine you could vote for Sanders in the general and know that, if he didn’t get enough to win, he would have the chance to add his total onto Clinton’s to help her beat Bush. But in this system, if his votes constitute the winning margin Clinton needs, he has a brief chance to negotiate before he gives them to her. Unlike a parliamentary system, once he gives his votes, he can’t later revoke them and force her into a vote of (no) confidence. But at least he has a clear moment and voice to promote his issues and get overt promises in return. I think that’s better than the covert stuff you’re talking about, on balance.

  • Peterr

    From the paper, the first of your five criteria:

    First, requirements that veto players and their vetoes are public and justified to a public audience increase their legitimacy.

    When I read this, the first thing that went through my head was the FISA court. Here you have a federal court being asked to rule on matters of great public interest, and while the identity of the veto player is known (the judge in any particular case), the judgment of the case is kept secret, as are many of the details of the case and the specific justification for the particular ruling. Add in the lack of opposing counsel that one sees in ordinary public court proceedings, and the perceived legitimacy goes down. To the extent that people discuss the actions of the FISA court, they are left with mostly their opinions that are independent of any specific case and its outcome. One side will proclaim “The government is just shouting ‘national security’ in order to steamroll their warrantless wiretapping programs through the courts to get a veneer of constitutionality,” while the other will say “We have to keep secrets, or the terrorists will learn what we’re doing, and millions will die in the next 9/11.”

    (For more on secrecy and legitimacy with regard to the court system, see “Kafka, Franz”.)

    (For more on FISA, see Wheeler, Marcy.)

    • Murc

      Add in the lack of opposing counsel that one sees in ordinary public court proceedings

      There’s opposing counsel in warrant requests? That’s news to me.

      • Peterr

        Maybe not at the request stage, but when they are presented for enforcement and someone argues to have the warrant, wiretap, or subpoena squashed, there are often plenty of lawyers to go around.

        • Murc

          Except that the FISA court, not being a trial court, wouldn’t even be involved in any kind of hearing of that sort, would it not?

          • Peterr

            Right. That’s my point.

            Where the constitutionality of most laws can easily be tested in open courts with dueling advocates, the FISA court allows surveillance requests and other procedures to be pursued without any visibility — and without any public recourse.

            The major problem faced by those who oppose the level of data collection involved as a violation of the fifth amendment is one of standing. You have to be able to prove you’ve been wiretapped under a secret program, but you are not allowed to see the rulings that may have authorized the search, let alone compel the government to confirm even the existence of the surveillance you may or may not have been subject to. Telecom providers cannot inform the subjects of a search that they are subjects. IIRC, the only way that anyone has been able to even begin to push back against this was through some of the Wikileaks documents.

            Leaving aside the pros and cons of the FISA court system, it strikes me as the perfect example of the difficulty in applying this first criteria to the US judiciary. It fits in many respects, but not with regard to the FISA Court. The vetos interposed (or not) by this court are not public, nor is their justification — both of which serve to decrease their public legitimacy in the eyes of many.

            • Murc

              You have to be able to prove you’ve been wiretapped under a secret program, but you are not allowed to see the rulings that may have authorized the search, let alone compel the government to confirm even the existence of the surveillance you may or may not have been subject to.

              Is this actually true? I mean, if the prosecution introduces evidence at trial, they have to actually say how they got it, don’t they? I mean, if they plop down a tape recording, don’t they need to outline the circumstances of how they obtained it?

              Or is this another one of those “state secrets doctrine, we don’t have to tell you shit” things?

              • Peterr

                It’s the other way around.

                The person/group being wiretapped goes to court and tells the judge “We want an injunction against the government, prohibiting them from wiretapping and otherwise surveilling me/us.” The government, as the defendant, goes to the judge and says “they have no standing to ask anything of us, because they have to be able to prove that they are being wiretapped — and no, we are not obligated to tell them if we are or not wiretapping them.” If the person/group bringing the case cannot prove that they are being wiretapped, the case gets tossed for lack of standing.

                IOW, in order to even get in the door of the court, you’ve got to prove you already know what the secret court said, and that it said to go after your private communications.

                • ajp

                  People call cops pigs but federal prosecutors…

  • Peterr

    Re criteria #3 and #4 . . .

    The State of Kansas is involved in a major constitutional court case (actually, a series of them dating back decades) around the public funding of schools. According to the state constitution, “The legislature shall make suitable provision for finance of the educational interests of the state.” [Article 6, section 6(b)] In the latest iteration of this battle, Brownback and the legislature say they’ve made suitable provision, and just last month a lower court rejected their arguments (as has happened regularly in earlier battles in this war). The case is now on appeal to the Kansas Supreme Court, which is expected to affirm the lower court by most court watchers.

    Brownback, too, anticipates this result. He pushed through the legislature a proposal to change the way lower court judges are selected to lessen if not remove the influence of the state bar association and increase the power of politicians in choosing judges. He could not include Supreme Court justices in this, however, as that would mean amending the state constitution. He pushed through another law eliminating the Supreme Court’s ability to appoint the chief judge in each judicial district and to set the budgets for each district court. This law also contained the unusual — if not unheard of — provision that says if the state Supreme Court strikes down this new law, the funding for the courts would be eliminated.

    The Kansas Supreme court ruling on the 2014 school financing case (pdf) spent a substantial amount of energy addressing the separation of powers and the questions of (to borrow your language) “weighing priorities” and “facilitating public contestation of government decision and government action,” not in the idea stage but in the action stage. That is, the courts are saying that the priorities established in the constitution (adopted through strict supermajoritarian procedures) must supercede the priorities of the legislature and governor if the bills passed and signed do not match.

    You might want to look into this in more detail for a judicial veto point example for the paper/book.

    • Murc

      This law also contained the unusual — if not unheard of — provision that says if the state Supreme Court strikes down this new law, the funding for the courts would be eliminated.

      I was impressed in a horrific way of the balls on that man, because there are few more arrogant creatures that judges, and the arrogance scales in proportion to their position. If I were a Supreme Court justice in Kansas, I’d be deeply tempted to strike down that law with an opinion reading “Come at me, bro.”

      • Peterr

        “Come at me, bro” is pretty much what that 2014 ruling I linked to said, in very nice, polite legal language, and the district court ruling from 2013 was even more blunt. In opposition to Brownback’s point of view about the authority of the court to veto what the legislature enacted and he signed, one of my favorite paragraphs from the district court opinion was this (pp. 37-38):

        Policy and politics stop where a constitution intercedes. A constitution is inviolate to negotiation, preference, or choice. A constitution commands deference and the utmost respect, most of all it commands fidelity. In Kansas, as in the other states of our union, a governor’s proposal or a legislature’s enactment is but a first, not final, opinion of the State’s constitutional requirements. Under our system of separation of powers, only the highest court can render a binding and final opinion of a constitution’s meaning and operative effect. Any other view announces the flaws inherent in third world constitutions and democracies.

        And by “any other view” they mean the one put forward by Brownback and the legislature in both their legal briefs and especially in their public pronouncements.

        Comparing Brownback and the legislature to third world leaders did not endear the courts to Brownback, as you might imagine.

  • elm

    I’ve been meaning to post in the comments section asking if a thread was going to be posted on the article. I skimmed it when I got my copy of Perspectives last week but haven’t had the chance to read it in detail yet. Quick thought was why there was no reference to Dahl’s work on the role of courts in democracy. It would seem to be quite pertinent to your argument (and I’ve always had a soft spot for Dahl ever since I stumbled across Preface to Democratic Theory in college. He got me started thinking systematically about democratic institutions rather than just dorm-room pontificating.)

    • djw

      I think there was a Dahl reference in a longer version. Damn word limits.

      • elm

        See this makes me sadder. My favorite democratic theorist left on the cutting room floor! (More substantively, I did find the article interesting and hope to be able to read it more closely soon. My own research is often related to veto player stuff, so I liked how you guys help to enrich an often overlooked topic of how veto players can differ from each other.)

    • Scott Lemieux

      We do cite him in the first article.

  • Guerre de Vendee

    Democracy is the “god” that failed.

    Nowhere and nopale is this more true than in the person of Donald Trump. Trump, a mere mortal, has reduced the Holy Blood and Body of Our Lord to mere “little cracker” and “little wine”.

    God Almighty, if it be his will, shall smite him from the race. Remember my words, for I am prophecisinzg.

    • sharculese

      Your god is a greasy little pervert leering sideways at a reality he has no hope of understanding.

    • wjts

      Be fair, Dagney – the only god who hasn’t failed is Mighty Poseidon. He’s the best!

    • Hogan

      I am prophecisinzg.

      Indeed you are.

    • Gregor Sansa

      Nowhere and nopale is this more true than in the person of Donald Trump

      The “nopales” jokes here write themselves. But martian autocorrect aside, what word was that even supposed to be?

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