The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In her badly flawed book Democracy in Chains: The Deep History of the Radical Right's Stealth Plan for America, historian Nancy MacLean gets many, many things wrong about the history and purposes of libertarianism. Jonathan Adler, David Bernstein (see also here), Phil Magness (also here), Russell Roberts, and Michael Munger, and others, have highlighted some of her most important fallacies and distortions.
On one issue, however, she is largely correct: it is indeed true that libertarians want to impose tight limits on the power of democratic majorities. Calling this agenda a "stealth plan" is, of course, ridiculous. It is much like saying that pro-lifers have a "stealth plan" to restrict abortion, or that Bernie Sanders has a secret agenda to expand government control over the economy. Skepticism about the power of democratic majorities has been a central—and completely open—feature of classical liberal and libertarian thought for centuries. Most of the Founding Fathers, John Stuart Mill, Alexis de Tocqueville, and many others held such views. It was Thomas Jefferson, writing in protest of the Alien and Sedition Acts, not James Buchanan and the Koch brothers (the central villains of MacLean's story), who wrote that "[i]n questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."
Regardless, MacLean tries to use libertarians' suspicion of unconstrained democracy as a cudgel with which to deligitimize them and prove that they are outside the bounds of reasonable political discourse. Why would anyone want to put "chains" on democracy, if not to empower a narrow oligarchy of the wealthy, as she claims libertarians want to do?
Yet libertarians are far from the only ones who want to chain down democracy. Consider a group MacLean may have some sympathy with: mainstream modern left-liberals. Are they populist champions of the will of the people? Do they want to empower democratic majorities to rule as they see fit? Pretty obviously not. In some ways, the left wants to put even more chains on democracy than libertarians do. That does not mean liberals are nefarious champions of oligarchy. Far from it, in fact. But if you agree with all or most of the left-wing critique of unconstrained democracy, that gives you good reason to accept significant parts of the libertarian critique, as well. At the very least, you cannot just dismiss it as a smokescreen for oligarchy.
I. Chaining Down Democracy through Judicial Review.
Where does the left want to chain democracy? Let us count just some of the ways. Most modern left-liberals want judicial review to constrain majorities on a wide range of issues. They include abortion, privacy rights, robust definitions of free speech (including many cases far removed from political speech) and freedom of religion, extensive protections for criminal defendants, and limitations on the powers of law enforcement personnel.
Like most libertarians and many conservatives, liberals also support the application of the Bill of Rights against state governments (as well as the federal government), which has led to numerous constraints on the powers of democratically elected governments. Left-liberals also want courts to forbid many types of discrimination that democratic majorities often support, including discrimination on the basis of race, ethnicity, religion, gender, and sexual orientation. More recently, they have begun to expand this to cover discrimination based on mental illness, discrimination against the handicapped, discrimination against non-citizens, and discrimination against transgender people. Taken together, that's a whole of lot chains weighing down democracy, covering a very wide range of issues.
It is ironic that MacLean falsely accuses of James Buchanan and other libertarians of opposing Brown v. Board of Education, while also attacking them for wanting to put tight limits on democracy. A consistent majoritarian democrat should be against Brown. After all, that decision struck down important public policies enacted by elected officials and strongly supported by majority public opinion in the states that adopted them. In fairness, those states were not fully democratic because they denied the franchise to African-Americans. Had blacks been able to vote at the time, Jim Crow segregation would surely have been less oppressive. But a great many segregation policies would likely have been enacted nonetheless, since blacks were a minority and the white majority in those states was strongly racist. The Brown case itself actually arose in Kansas, where blacks did have the vote, but still lacked sufficient political clout to prevent the white majority from enacting school segregation.
Why do many on the left want to chain down democracy in so many ways? Progressive thinkers give a variety of answers to these questions. But, in most cases, it comes down to claims that the democratic process is systematically flawed in dealing with various issues. The flaws may be caused by voter ignorance, prejudice, the "tyranny of the majority," the influence of powerful special interests, a tendency to victimize groups with little political influence, or other factors.
Some left-wing thinkers also argue that certain rights are just too important to be subjected to the vagaries of shifting political majorities. They should instead be guaranteed against violation, regardless of the preferences of politicians and voters.
In some cases, judicial intervention can be defended as a tool for facilitating participation in the democratic process (e.g.—judicial protection for political speech). But this "representation-reinforcement" theory cannot cover more than a modest fraction of the areas where most of the modern left supports aggressive judicial review.
Admittedly, there is a crucial difference between libertarians and liberals when it comes to judicial review. Most libertarians want to expand judicial protection of property rights and economic liberties, while the left is very wary of judicial intervention to curtail government power over the economy. But many of the same reasons that liberals advance in defense of judicial protection of "noneconomic" rights apply to property rights and economic freedom, as well. It's hard to deny that economic policy is often heavily influenced by ignorance, prejudice, the tyranny of the majority, tendencies to victimize the poor and politically weak, and so on. Federal and state courts' withdrawal from protection of property rights in the mid-twentieth century led to such massive abuses as the forcible displacement of hundreds of poor and minorities through "urban renewal" and "economic development" takings.
Whether economic liberties and property rights are as important as "noneconomic" freedoms is a complex question. But, at least some of the former rights do have great significance, arguably greater than some of the latter. At the very least, it's hard to understand why the courts should closely scrutinize the government's decision to search a house, but turn a blind eye to the far more consequential decision to condemn and destroy it, or to zoning restrictions that in many cities make it virtually impossible for the working class to find housing at all.
This post cannot possibly resolve the longstanding debate over the appropriate scope of judicial review. Libertarians and the left are likely to continue to differ on these issues. Here, I just want to make the more limited point that people who favor aggressive judicial review on a wide range of "noneconomic" issues should not categorically dismiss the possibility that their justifications for doing so apply to various economic policies, as well. At the very least, they have no basis for dismissing those who make this connection as evil apologists for oligarchy.
II. Majoritarian Democracy vs. the Modern Regulatory State.
Strong judicial review is far from the only way in which many on the left seek to constrain democratic majorities. An important strain of left-liberal thought also advocates concentrating extensive power in the hands of bureaucratic administrators and other experts. Because the public is often ignorant and easily misled about complex regulatory issues, leading scholars such as Cass Sunstein and Supreme Court Justice Stephen Breyer argue that many policy decisions should be left in the hands of experts who enjoy a substantial degree of insulation from the pressures of the political process. I look forward to reading Nancy MacLean's book about how Breyer, Sunstein, and others with similar views are shills for would-be bureaucratic oligarchs!
Some important parts of the regulatory state already enjoy considerable insulation from electoral pressure. The Federal Reserve Board (which controls most aspects of monetary policy) is perhaps the best-known example. Advocates of the technocratic strain in left-liberal thought would like to establish similar insulation for many other regulatory agencies.
The conflict between democracy and the modern regulatory state favored by most on the left goes well beyond explicit efforts to insulate bureaucrats from the democratic process. Even if we abjure all formal efforts to create such insulation, bureaucrats and other unelected officials would still wield enormous power. The sheer size and scope of modern government makes that unavoidable.
In most Western democracies, government spending accounts for 35 to 40 percent of GDP, or even more. The state also extensively regulates most aspects of our lives. Data from around the world show that most voters have very limited political knowledge, often unaware of very basic facts about government and public policy.
Even if the electorate were significantly more attentive than it actually is, they still could not keep track of more than a small fraction of all the issues controlled by modern government. It is even more difficult for voters to figure out how seemingly disparate government policies interact with each other. For example, few voters realize that zoning restrictions not only reduce the availability of housing, but also close off job opportunities for millions of people.
Because of these dynamics, vast areas of government policy are left largely to the discretion of political elites, many of them unelected executive branch officials and bureaucrats. The more issues are under the control of democratic government as a formal legal matter, the less the voters are actually able to monitor what is going on. As James Madison put it in Federalist 62, "[I]t will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."
By contrast with most of the left, libertarians are much more wary of delegating power to bureaucrats and experts. If they had their way, government would do a lot less than is currently the case. But a much higher percentage of the government power that remains would be subject to tight public control. Moreover, a smaller, simpler government would be considerably easier for voters to monitor. In this important sense, libertarians are actually more supportive of democracy—defined as public control over government policy—than many on the left are. The government that governs least may not be best in every way. But it is likely to be more meaningfully democratic than one that regulates and controls as much as the modern state does.
The point of all this is not to denounce the left as vile enemies of democracy. Much to the contrary. In many of the areas where liberals favor strong judicial review, I think they are right to do so. For example, I too favor aggressive judicial protection of many "noneconomic" rights, agree that courts were justified in striking down laws banning same-sex marriage, and that they should invalidate Trump's travel ban executive order, among other discriminatory policies.
While I am not a fan of delegating broad power to bureaucrats and other experts, I do recognize the seriousness of the problem people like Breyer and Sunstein are trying to address, and that they are attempting to deal with it in good faith. I agree that widespread political ignorance and scientific ignorance are serious dangers, but differ when it comes to the solutions.
Instead of demonizing each other, we should recognize the considerable common ground that exists on the need to constrain majoritarian abuses in many areas. You don't have to be a libertarian to recognize that completely unchained democracy is likely to be a menace. That recognition might help us have a more productive discussion on the issues where we differ.