Category Archive: Political Science

  1. Highlights from our Reddit AMA with Professor Sarah Burns

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    Did you miss our recent Reddit AMA with Professor Sarah Burns of RIT’s political science department? You can find the whole conversation here, or check out some of the highlights below.

    Dr. Burns is a regular contributor to the Learn Liberty Blog, and starred in our series on America’s Founding.



    Hi, thanks for doing an AMA! I’ve got a fairly straight forward question:

    Do you believe that our inherent cultural paradigms have an impact on the acceptance of liberalism? And if so, how is globalization and the internet working to change/alter our cultural paradigms and attitudes with regards to liberalism?


    That’s a big question! It’s also hard to answer without first addressing what you mean by liberal. Classical liberalism focuses on rights protection, limited government, and free markets. Presently in the United States, people connect the term “liberal” to people like Bernie Sanders who favors expanding rights protection, providing a government safety net and protecting American workers. Ideologically, it’s pretty much night and day! I would say that there is a core element of the American identity that holds firm to classical liberalism and an element that sees government as a check on the more volativle elements of a free market system. For that reason, if you think that free markets make goods cheaper which benefits all levels of society, you would favor globalization. Comparatively, if you think it causes a concentration of wealth and the exportation of jobs, you’d agree with Bernie Sanders. The internet provides a means for individuals to engage in confirmation bias. The more you see that globalization provides a net benefit, the more you support it. The more you see that globalization causes problems, the more you oppose it.


    If you could rewrite the Constitution what would you keep? What would you get rid of? What would you add?


    A dream come true!

    I’ll do my top three:

    1.  I would give Congress the teeth it needs to control the use of force. Presently the power to declare war doesn’t stop presidents from starting wars.

    2.  I would get rid of the 17th Amendment. States need a say in the federal government in order to stop the federal government from gobbling up state power.

    3.  Find a way to deal with parties. They aren’t accounted for in the Constitution.


    Professor Burns, you mentioned that throughout the years the Founders and their followers had endured great hardships without altering the Constitution. Considering that the left has now joined the right in clamoring for a Constitutional Convention, do you think that will now occur and what do you think the outcome could be?


    If the Civll War didn’t cause a Constitutional Convention I doubt we’ll see one now. You’d need a really big catalyst to cause one.


    How do you think the 2016 election cycle will impact future presidential elections?


    That’s a big question. First of all, everyone has to throw out the old playbook. Gone are the days when you can say money and organization wins elections. Hillary outspent and out-organized but still lost. We also may need to rethink our addiction on polling. I think it was horrible how people went after pollsters after the election when they correctly predicted that there was a margin of error that could lead to Trump’s win. It’s not their fault it happened. There may have been, however, some people who saw the polls and decided to stay home and/or vote. That’s giving statistics far too much power over our democracy. We also see the growth of populism in the United States. This is the first time since Andrew Jackson that a truly populist candidate made it to the White House. Populism has an extremely dangerous element. It’s rooted in passions and therefore somewhat immune to rational argument. That’s one of the reasons we see Trump support among his base remaining solid. They love him no matter what he does. I suppose I’ll say I hope that our institutions will do a good job of correcting for this excess of democracy (that can be bad as well). Those are my top take aways.


    1.  What are some of the reasons why Congress has chosen not to declare war in the past 70 years? Does this play a role in the aggregation of power to the presidency that both parties have played a role in?

    2.  What is a workable framework towards developing a better separation of powers on the issue of war powers? Should we take an originalist view of the presidency or should this better be understood in the context of modern warfare?


    1.  The short and blunt answer is that Congress has shirked its constitutional responsibility. It’s in their interest to let the president sink or swim on his own and critique him from the sidelines. It does play a role in the collection of power in the presidency. Structurally the Constitution creates a system when one branch checks the other. It isn’t surprising that presidents want more power over war. What’s surprising is that Congress has given it to them.

    2.  Congress needs real teeth and skin in the game. They need a more powerful way to check unilateral presidential war making. The power of the purse doesn’t work because it looks like they’re taking money away from our troops. They can’t stop presidents from initiating hostilities because presidents know Congress wants to avoid holding the executive accountable. If the president didn’t have discretionary spending to allow the initiation of hostilities without congressional assent, they would go to war way less. That could cause some issues for defense but those can be worked out. That would give Congress teeth and skin in the game. They voted to give the president the money he needs to engage in the military operation. They’re on the hook if it goes poorly as well. I think that framework stays true to the “invitation to struggle” created by the Constitution while acknowledging that modern warfare is different.


    What is the closest historical analog for the current US political climate?


    It’s similar to the turn of the 20th century. There was a real concentration of wealth (it was called the Gilded Age) and the working class had a lot of problems. There were calls to create unions to protect “the little guy” while a small fraction of the population got richer and richer. It was also an era of globalization as we were becoming more and more connected to other markets. There were populist movements and nationalism, just like we have today. There were also people arguing in favor of more globalization and freer trade.


    What are the historical indicators of impending revolt, legal or otherwise, when authoritarian type leaders in America, or abroad are removed by the people?


    I’m not sure what a legal revolt would look like, lots of lawyers and judges walking out of court rooms? I kid.

    Traditionally, Americans have been very gun-shy around revolutions. They liked their own but after that they didn’t really support a lot of democratic movements for a while. I would also say that besides a few examples in the first half of the twentieth century, most developed Western democracies correct their problems through elections rather than revolutions. Typically for a revolution to occur there have to be very bad states (that do not provide basic services) without enough money to buy off the electorate (this happens in what are called rentier states; the government will give money to people in order to stop them from trying to create a more democratic government). Overall, I would say the history of revolutions is not a happy one. Most of the time, the state falls into anarchy (such as many of the states after the Arab Spring) or tyranny (such as France and Russia after their revolutions).


    As the Baby Boomers continue to retire/die what do you think the future of our government will look like as more Millennials replace them?


    I wouldn’t count out the Baby Boomers yet. There are still a lot of them and older voters vote. For that reason politicians pay attention to them. Moreover, life-expectancy has increased dramatically. That said, Millennials will likely go through the same cycle as Boomers. Presently they are more iconoclastic; as they grow up they’ll worry more about mortgages and educations; later they’ll wag their finger at the youngins’ who don’t have any respect or ambition. We (I’m a Millenial) can’t even claim that we’re the first to worry about the environment. Boomers beat us to that. Similarly the Gen-Xers can claim that the difference between life before and after internet was much more important than life before and after smartphones.


    Do you think it’s dangerous that people are pro-Trump regardless of what he does?


    There is an element of passion that sits at the heart of all democracies. After all, Madison in Federalist Paper #10 said we have to control the problem of faction rather than eliminate it. Trump’s devoted base could be considered a faction by some. As such, as long as our institutions check and balance each other, the passion of his supporters will not be the only thing guiding policy outcomes.


    Do you support the Paw Print petition for the changing of Dinning Dollars to Destler Doubloons?




  2. F.A. Hayek accomplished several careers’ worth of economic achievements in one lifetime

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    F.A. Hayek would have celebrated his 118th birthday today. When he passed away in 1992, he left behind a prodigious body of work on several discrete issues.

    Hayek was the 20th century’s most prominent developer of the Austrian business cycle theory. He extended Mises’s argument about the impossibility of economic calculation under socialism in his classic essay “The Use of Knowledge in Society” and in the papers that were collected into Individualism and Economic Order in 1948.

    As a student, he developed the basis of a cognitive theory, which he revised and published in 1952 in The Sensory Order. He wrote extensively on the method of the social sciences in The Counter-Revolution of Science, also published in 1952 and one of his most important statements on the subject.

    Throughout the 1950s and 1960s, he developed a body of social theory about knowledge and competition. These became The Constitution of Liberty (originally published in 1960) and Law, Legislation, and Liberty, released in three volumes during the 1970s. He was awarded the Nobel Prize, which he shared with Gunnar Myrdal, in 1974.

    Each of these separate bodies of work would constitute a monumental achievement. Hayek did it all over the course of a single career that established him as one of the most important social thinkers of the 20th century. He was most famous, however, for his 1944 book The Road to Serfdom, a more popular treatment of many of the ideas expressed in Individualism and Economic Order that had a deep and profound effect on the English-speaking world.

    Its theme — that statism, socialism, and the erosion of economic liberty meant the erosion of political and civil liberty — was a brilliant exposition of classical liberal ideas and a rank heresy to the established intellectual order. It is through The Road to Serfdom — which was condensed by Reader’s Digest and circulated (in its condensed form) by the Book of the Month Club — that Hayek likely had his biggest effect on public policy.

    The Hayekian Tradition

    There is a rich and vibrant body of scholarship in the Hayekian tradition — what Peter Boettke calls “mainline” (as opposed to “mainstream”) economics — a tradition that builds on the original insights of Adam Smith and Ludwig von Mises and that would later find application and expression in the work of Nobel laureates Milton Friedman, James Buchanan, Douglass North, Vernon Smith, and Elinor Ostrom. Hayek’s ideas are not the curios of intellectual history. They remain fresh and applicable to a wide array of settings where they are being used today by scholars in several disciplines.

    Hayek (and Mises, and many others) was vindicated in a sense by the demise of communism in Eastern Europe and the Soviet Union. Still, his insights have not made full inroads into scholarship and public policy. Liberty and prosperity are hardly the natural outcome of political orders, and they are under constant threat from some who mean well and others who do not.

    The world is certainly a better place, though, because F.A. Hayek explored and explained the institutional foundations of a free and prosperous society. For this we should be grateful.


  3. Reddit AMA with Professor Sarah Burns, scholar of the American founding

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    Sarah Burns is Assistant Professor of Political Science at the Rochester Institute of Technology.  Her research examines the intersection of political liberalization and American constitutional development with an eye toward policy implications for democratization across the globe. 

    Professor Burns was featured in Learn Liberty’s America’s Founding series. She has also written on American history (1), American foreign policy (2,3), elections (4,5), and constitutionalism (6) for the Learn Liberty Blog.

    Join us for a conversation on Reddit this Tuesday, May 9th at 3:30pm ET, where you can ask her anything!

    UPDATE: The AMA is now live!

  4. Abusive leaders threaten African progress

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    Over the past few weeks, I’ve been reading news stories about the deterioration of democracy in Africa. For someone like me who has been encouraged by positive improvements on the continent over the past decade, it certainly is depressing reading.

    Reporting on the Mo Ibrahim Foundation’s failure — a second year running — to identify an African leader to receive its sizable good governance prize, Deutsche Welle notes that few African leaders are leaving power voluntarily (a prerequisite for the prize). Instead, they are doing what they can to hang on to political control — sometimes for decades. There are now four African leaders who have been in power for over 35 years. These men keep a tight rein on the economic and political affairs of Angola, Cameroon, Equatorial Guinea, and Zimbabwe.

    Abuse of Power by African Leaders

    Some leaders are looking to change constitutional provisions to remain in power far beyond their originally designated terms; this is the case in both Rwanda and Burundi.

    In Gambia, President Yahya Jammeh, in office for 22 years, first conceded defeat in a December 2016 election. He then backtracked, rejecting election results, closing private radio stations, and jailing critics. He was finally coerced out of office after military forces from the Economic Community of West African States entered the country in late January 2017.

    In South Africa, facing mass protests and rising calls to step down over charges of corruption and poor handing of the economy, President Jacob Zuma is instead looking to consolidate power.

    And in Uganda, President Yoweri Kaguta Museveni’s political party is working to amend age restrictions on his office and, in effect, make him president for life.

    The Canadian paper the Globe and Mail points out that while democracy may be strengthening in some parts of West Africa (for example, Ghana and Burkina Faso), in East African countries such as Zambia, Tanzania, and the Democratic Republic of Congo, democracy is also under siege: critics are being jailed, charged with treason, and silenced by threats and intimidation. In Uganda, the government is using an old colonial law to charge a critic of the president with being mentally ill, which would enable the government to institutionalize her if the case succeeds.

    Problems with Undemocratic Governments

    There are a host of reasons to be worried about these developments. First, political leaders who cling to power rarely treat opposition voices fairly: they manipulate election results, choke off a free press, jail journalists and critics, use force to stop protests, and create environments where fear and intimidation reign.

    People living in these societies are not free to associate, and if they express their political opinions in the press, through social media, at rallies, or at protests, they often face retaliation. Political monopolization stifles the free exchange of ideas, blocks political participation, and frustrates change.

    Second, these governments often rely on the force and power of the military and police forces to limit or silence dissent. Rather than defending citizens from external attacks or enforcing recognized and legitimate rights, the military and the police turn against citizens. Keeping the peace instead becomes an exercise in keeping those in charge in power — sometimes violently and in ways that violate rights to life and liberty.

    Third, political monopolization undercuts an open and competitive economy. Authoritarian governments use laws and regulations to reward the politically well-connected by creating barriers to entry for others. Economic competition, like political competition, is constrained, which limits innovation and growth, raises prices, and restricts choices for consumers. These outcomes are not good for the poor people who struggle to make ends meet in these countries.

    While the large economic literature on the relationship between democracy and economic growth is mixed, and while some authoritarian societies have experienced sustained economic growth (think Taiwan, South Korea, Singapore, and China), in Africa, this path has been more fraught. Authoritarian leaders may sustain economic growth in the short to medium term, especially if they can rely on revenues generated by natural resource production. But long-term, sustained economic growth requires creative destruction — something long-term leaders tend to dislike in both political and economic spheres.

    A Discouraging Deterioration of African Democracy

    For these reasons, this “deterioration” of democracy in Africa is discouraging. It’s also discouraging because over the past decade, real GDP growth rates across Africa have been strong, averaging about 4.4 percent a year (compared with less than 2.0 percent a year for the United States). Of course, African countries need to maintain high growth rates for many years to catch up to the Western world and to cut poverty rates and the problems that come with poverty: malnutrition, poor educational outcomes, disease, low levels of formal-sector employment, and more.

    It had been looking as if Africa was finally on a good path: diversifying its economy, attracting more investment, reducing debt, and growing a middle class. But staying on this path requires governments to provide stable political and economic conditions, protect the property rights of citizens and investors, and allow the forces of creative destruction to do their work, all of which may be less likely if Africa’s leaders continue to frustrate liberty by monopolizing political and economic power.

  5. What Classical Liberals Get Wrong About Political Science

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    Can there be a classical liberal political science?

    To answer that question, it is instructive to examine how classical liberal ideas have developed and what disciplines have shaped the classical liberal tradition most.

    And to begin, we must acknowledge that contemporary scholarly classical liberalism has developed in an imbalanced way.

    By far the greatest intellectual investment has been in economics.

    There are good reasons for this, of course: the understanding of market processes and market ordering that liberal economists have given us is central to an appreciation of the counterintuitive idea that unplanned and decentralized voluntary action can yield beneficial social results.

    The insight that the market economy is a spontaneous order has been a crucial one for the development of modern classical liberalism as a whole. And economists, those who study market processes and orders, have a disproportionate tendency to be sympathetic to open and liberal markets. Most of the founders of the Mont Pelerin Society—the organization that shaped the intellectual agenda of postwar classical liberalism—were economists (of one methodological stripe or another).

    Somewhere behind economics, in an order I wouldn’t know how to rank, come law and philosophy.

    Classical liberal legal scholarship has encompassed both US constitutional law, recovering a sense of the commitment to liberty found in the US Constitution’s protection of rights as well as its structure of federalism and separated powers; and private law, especially in the law-and-economics tradition.

    Classical liberal philosophy has taught us a great deal about the meaning and intellectual structure of rights, liberty, and justice, and about the vision of human well-being and flourishing that animates a concern with freedom. And, in a broad way, these streams of research and scholarship in economics, law, and philosophy have complemented and enriched each other, contributing to the emergence of a distinctive kind of classical liberal social theory—the humane studies highlighted in the name of the organization that hosts this website.

    In contrast, political science, including the kind of political theory that is done within political science, has been relatively neglected in this ongoing scholarly program. (So has sociology; another topic for another time.)

    This is not, as some readers will be tempted to think, because political scientists are sympathetic to “the state” as economists are sympathetic to the market. Political scientists are in routinely in the business of studying things we don’t find attractive: wars, coups, revolutions, genocides, civil wars, authoritarianism, populism, voter ignorance, and institutional dysfunction of all kinds.

    Yet the study of those topics through the lens of political science ought to be a key part of a classical liberal social theory.

    We don’t have to agree with those who think that markets and civil society are constituted by the state to see that they may be either facilitated or jeopardized by political outcomes. War, civil war, institutional collapse, the rise of authoritarian or totalitarian governments—understanding where these come from and how to inhibit them is a cornerstone of a fully developed account of social orders compatible with human liberty.

    And we don’t have to conceptually identify democracy or majoritarianism with liberty in order to think that, as a matter of fact, constitutional democratic governments are a crucial feature of free societies. It follows that we ought to care about how they work, and where they come from.

    But the current classical liberal interpretation of political science is lacking.

    All too often, classical liberal social theorists (who, in other domains, are well aware that social outcomes can be the product of human action without being the product of human design) treat political outcomes as being a matter of other people’s bad will and bad decisions. But political orders are complex emergent phenomena, as much as other orders in human society. Building a stable government that protects and facilitates individual liberty, involves more than a group of people with the correct beliefs about rights theory agreeing to do good things rather than bad things.

    In other words, too many classical liberals who understand complexity in other social arenas become decisionists when they think about politics: all we need from governing institutions, they assert, is for people to make good decisions rather than bad ones.

    They fall into this fallacy partly because they identify good government from a classical liberal perspective with mere inaction: all our rulers need to do is to stay their hand. Whatever the truth (and it’s a partial truth, as Hayek knew) of laissez faire as a description of good policy, it is no truth as an answer to the underlying organization of violence, coercion, and rule. A political order that can engage in and commit to the right kind of inaction, in the right ways and at the right times, is a rare accomplishment, and we still know too little about how to get it and how to keep it.

    Over the course of these posts in coming weeks and months, I will identify some obstacles that have prevented the development of a classical liberal political science and political theory that can fit within the broad development of the humane studies. (Spoiler alert: Lockean social contract theory and public choice theory, while they’ve both taught us valuable things, have become in important ways intellectual obstacles to overcome.) And I’ll try to draw on what political scientists and theorists have learned, offering some thoughts about what needs to be incorporated within the developing liberal social theory of the humane studies.

  6. Did Trump’s attack on Syria violate the Constitution?

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    Donald Trump’s decision to bomb an airfield in Syria, along with his hints about overthrowing Bashar al-Assad, have led many to wonder: doesn’t Trump need authorization from Congress before acting? The answer, like many in politics, is yes and no.

    A quick scan of the Constitution will tell you that Congress has the power to Declare War as well as the power to issue “Letters of Marque and Reprisals.” For those not up on 18th century lingo, those Letters provide the bearer with the power to capture an enemy who has left the country (typically by ship). It legalizes actions that would otherwise be considered piracy.

    According to scholars like Charles Lofgren and Louis Fisher these two levels of power combine to provide Congress with sole custody over the initiation of military operations big and small.

    The president, in turn, has the power to act unilaterally in emergencies. We know this from Madison’s famous decision to change Congress’s power from “make” to “declare” war so presidents would be able to “repel sudden attacks.”

    Once Congress has provided presidents with authorization, they have the power as commander-in-chief to conduct military operations. Congress can maintain discipline through the “power of the purse” — containing presidential adventurism by closing up the purse strings.

    Presidents at War

    That’s the theory. But that’s not how it has worked in practice. In fact, Congress has issued only 5 declarations of war over the entire course of US history. And yet presidents have deployed the military more than 300 times.

    Thomas Jefferson sent the American navy to the Mediterranean to fight the Barbary Pirates without prior congressional approval. James Polk marched the army up to the border with Mexico, all but daring the Mexicans on the other side to shoot. William McKinley and Theodore Roosevelt treated the American military like a “civilizing force,” sending it to the Caribbean and the Pacific to display America’s increasing might and open new markets for American products.

    Executive power only expanded from that point on. WWI and WWII put enormous power in the hands of the executive to act unilaterally. By the time Truman became president, his predecessors had carved out a large enough space for unilateralism that he started and conducted the Korean War without ever receiving congressional approval.

    After the “Imperial Presidencies” of Lyndon Johnson and Richard Nixon, Congress passed the War Powers Resolution, meant to hold executives more accountable. But, while presidents will acknowledge that resolution’s existence, they never acknowledge its constitutionality.

    By the time George W. Bush became president, he had decades of precedent providing him with good reason to assume he could initiate military operations without congressional approval. And yet, after 9/11 Bush sought a congressional Authorization for the Use of Military Force (AUMF) to pursue terrorists and those who provide them sanctuary. He sought another AUMF in 2002 for military operations against Iraq.

    Presidential Adventures

    This leads to a puzzle: Presidents in the 21st century know they can initiate operations unilaterally. Members of Congress know they can sit on the sidelines. For the most part, presidents get the glory if it goes well and Congress wags their fingers if it goes poorly. Presidents know that Congress is likely to abdicate responsibility, so when they want to take military action they avoid wasting the political capital needed to court the legislative body effectively.

    In fact, for at least 100 years, there have been only two sorts of circumstances in which presidents have sought, and Congress has provided, congressional approval for military action:

    1. Direct Attacks on American People or Territory

    This occurred for all of the declared wars as well as for the 2001 AUMF that followed 9/11.

    1. Vital US Interests at Stake

    George H.W. Bush made this claim to Congress to receive authorization for the first war in Iraq. George W. Bush claimed Saddam Hussein still had WMDs in 2002, leading Congress to provide him with the authority to initiate hostilities if he deemed it necessary. Since WWII, Congress has only issued an AUMF 8 times.

    Even when there is a pressing humanitarian crisis, like those in Kosovo, Sudan, or Syria, Congress has shown extreme reluctance to stand behind the president and provide authorization to use military force. It is a safe assumption that if there isn’t a clear US interest; clear public support; a clear exit strategy, or a fearful population, Congress tends to allow presidents the power to sink or swim on their own.

    This is problematic for any constitutional system. It also facilitates reactive and poorly thought-out policy. Looking back on policy decisions over the last hundred years, we can see a cyclical pattern in which presidential adventurism leads to a period of relative isolation, during which time enemies (broadly understood) regroup and attack, leading to another round of presidential adventurism.

    Congressional buy-in isn’t a magic bullet: Congress has contributed to plenty of mistakes. It does, however, force a president to deliberate about decisions and provide more clarity about the military objectives. This process is vital for producing better policy outcomes, fewer errors and more responsibility for the vagaries of war.

    Without an attack on the United States or a clear US interest, however, Congress has proven unwilling to perform their constitutional duty. What happens if Congress doesn’t challenge the president? Without that check on executive power, presidents have long understood they have the authority — thanks to their constitutional powers and deference in the military to civilian control — to initiate nearly any operation, of any size, anywhere in the world.

    The problem comes out most clearly in a quote from Congressman Jack Kingston from 2014. He accidentally told the truth when discussing the congressional decision to avoid giving Obama an AUMF. “A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later’… We like the path we’re on now. We can denounce it if it goes bad, and praise it if it goes well and ask what took him so long.’”

    Congressional deference doesn’t impede presidential adventurism. It facilitates it.

    Decisions about how to spend American treasure and spill American blood comes from one end of Pennsylvania avenue while the other looks on. For better or worse, it is likely that America’s military decisions in Syria will fall entirely on Trump’s shoulders.

  7. Is Judicial Review Undemocratic?

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    America just got a civics lesson from a U.S. Senator on the role of the Supreme Court.  In his opening statement during the nomination hearing of Neil Gorsuch, Senator Ben Sasse explained the proper (albeit uncommonly-realized) role of a Supreme Court justice. According to Sasse, the Supreme Court, when it appropriately exercises the power of judicial review, defends the long-term will of the people. Sasse is right, and those who wish to defend limited government and the will of the people in the United States should be passionate both about defending judicial review and also about limiting judicial review within proper constitutional bounds.

    Defending Judicial Review

    Why isn’t judicial review undemocratic? Why is it alright for the elected representatives of the American people (i.e. Congress) to pass a law only to have it “struck down” by a panel of unelected, dour ivy-leaguers in black robes (i.e. the Supreme Court)?

    Before we get to the answer, a brief refresher in American civics:  American constitutionalism as understood by the framers of the U.S. Constitution requires that the “will of the people” exists not in any single law passed by Congress but only in the fundamental law that is the U.S. Constitution. It is the Constitution that embodies the long-term will of the people.

    The Constitution established an essentially-popular government, but the problem with all popular governments is the constant tendency of majorities to oppress minorities, particularly during temporary periods of political passion.  The framers therefore institutionalized certain checks against the temporary ambition of the majority through such features as the bicameral legislature (Article I, Sec. 2-3) and the executive veto (Article I, Sec. 7), while respecting the popular foundation of American political authority in the form of an original ratification of the U.S. Constitution in the people of the several states (Article VII) and of regular revisions to the fundamental law through amendments to the U.S. Constitution when a supermajority agrees to it (Article V).

    So, the Constitution, taken as a whole, represents the will of the people bound by certain constraints to prevent tyranny of the majority. Any action of a congressman, president, or Supreme Court justice at odds with the U.S. Constitution therefore is at odds with the will of the people.  We have a word for that: unconstitutional.

    What shall we say then of judicial review? If Congress passes an unconstitutional law, that law cannot in any true sense represent the will of the people, especially if it were to represent only some temporary spasm of political desire on the part of a majority of the country. This, in any case, was Alexander Hamilton’s argument in Federalist 78. According to Hamilton, when Congress passes a law that it had no authority to pass, it effectively “enable[s] the representatives of the people to substitute their will to that of their constituents.” When this happens, the Supreme Court may lawfully act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” In this way, Hamilton explains the essentially-democratic nature of the practice of judicial review: “If there should happen to be an irreconcilable variance” between the Constitution and a law of Congress, “that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

    Rather than being undemocratic, judicial review, rightly understood and rightly exercised, defends the long-term will of the people. As Sasse explained during the Gorsuch hearing, “When Congress passes an unconstitutional law, it is in fact the Congress that is violating the long-term will of the people, for the judiciary is there to assert the will of the people as embodied in our shared Constitution over and against that unconstitutional but perhaps temporarily popular law.”

    The Limits of Judicial Review

    While judicial review rightly-understood constitutes an essential feature of the American political system, unrestrained judicial review constitutes a dangerous deviation from democratic principles. Hamilton explains in Federalist 78 that judicial review does not “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.” When the U.S. Supreme court strikes down laws of Congress that are not in “irreconcilable variance” with the U.S. Constitution, the Supreme Court effectively substitutes its own will for the long-term will of the people as embodied in the U.S. Constitution as the final measure according to which all laws are judged.[1]

    To be clear, this renders the American polity an oligarchy instead of a democratic republic, and it is no better than Congress passing laws that it has no authority to pass. Both constitute an attempt by our governors to substitute their own will for the long-term will of the people as embodied in the Constitution. In fact, Madison and Hamilton were clear in the Federalist Papers that although all three departments of government play a role in the interpretation of the U.S. Constitution (interpretations which receive institutional force in powers such as the legislative power of Congress and the executive power of the president), the “people themselves…can alone declare its true meaning and enforce its observance” through such things as elections and, of course, through amendments to the U.S. Constitution. The point is that the Supreme Court does not, any more than the president or Congress, provide a final interpretation of the Constitution for which there can never be an appeal. If that were the case, “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”[2]

    So, is judicial review undemocratic? No! Rightly understood, judicial review is an essential bulwark of American liberty. But wrongly understood, judicial review is an abuse of court power, an abuse made more dangerous by many Americans’ lack of awareness of the importance of the American people – not the legislature, the court, or the president’s legal counsel – being the final judge of the meaning of the Constitution, which is itself the will of the people.

    [1] These were Lincoln’s words in his First Inaugural Address when he was responding to the Supreme Court’s decision in Dred Scott v. Sandford (1857) in which the court held the Missouri Compromise of 1820 to be unconstitutional because it violated an alleged constitutional right of people to own other human beings as property that was protected under the 5th Amendment.

    [2] The United States Supreme Court has, at various points, asserted, either implicitly or explicitly, that its constitutional interpretation, rather the Constitution itself, is the supreme law of the land.  One example of an explicit assertion to this effect occurred in Cooper v. Aaron (1958); for a discussion of this as a problem, see Edwin Meese, III, “The Law of the Constitution,” Tulane Law Review, Vol. 61: 979-990.


  8. How to stop politicians from gerrymandering

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    Elected officials are regularly tempted to exercise their power in ways that benefit themselves and their friends at the public expense. A good example is gerrymandering, the practice of drawing district lines to help ensure a desired result in future elections. Both parties do it, and the practice dates far back in history.

    Gerrymandering often results in strangely shaped political districts in which it is very difficult for voters to unseat incumbent politicians.

    In a classic single-party gerrymander, the party in power packs opposition voters densely into as few districts as possible, thus enabling its own voters to lead by a comfortable margin in a maximum of districts. When a legislature is under split party control, the theme is often bipartisan connivance: you protect your incumbents and we’ll protect ours. Third-party and independent voters, as is so common in our system, have no one looking out for their interests.

    Some other strategic political purposes can be served by gerrymandering: Weak incumbents can be spared scrutiny of their performance by assigning
    them tracts that fall short of being coherent political communities,

    perhaps combined slivers of multiple metropolitan areas with little in common. It’s expensive and time-consuming for a challenger to campaign or advertise against an incumbent in such a district. Party bosses can also punish their own party’s lawmakers for being too independent-minded by drawing them unfavorable districts.

    The process feeds apathy. Residents who have not even figured out which district they are in are less likely to keep track of how well their representative is serving their interests.

    The Constitutional Background

    Our Constitution puts states in charge of apportioning their own legislatures, while dividing the corresponding power as to congressional districts between them and Congress.[1] The Supreme Court’s one-person-one-vote rulings require equal or nearly so population in districts within a state. The Voting Rights Act of 1965, following the Equal Protection Clause, bans districting done for a racially discriminatory purpose, which adds a sometimes-complex overlay of requirements.

    Although the Supreme Court has been urged to ban politically motivated gerrymandering, it has thus far declined to do so. Its rationale: it could identify no principled and objective standard to apply that would not draw it into a multitude of complicated local disputes.

    Fortunately, ideas for reforming gerrymandering are many. They fall into two main categories:

    1. Rules on who is responsible for drawing district lines
    2. Rules directing the shape or extent of districts

    Who should draw the lines?

    One of the ideas that recurs most frequently is to make the process bipartisan, or at least avoid empaneling a majority of loyalists from a single party. The second largest party thus winds up in a negotiating position, perhaps with one or more neutrals or tie-breaking votes in between.

    A newer trend, which has caught on especially in Western states in recent years, is to entrust redistricting to a more fully independent commission of citizens not holding office. Elected officials themselves, their families, and political pros are frequently excluded.

    In a category of its own is the system used in Iowa (as well as many countries outside the U.S.). It assigns redistricting to the same nonpartisan civil service staff that provides legislative services such as bill analysis at the capitol. Although Iowa’s system is often praised for its fair results, it may owe some of that success to features of the local political scene not replicated everywhere. For example, Iowa has a fairly even party balance and a legislative staff whose nonpartisan bona fides are accepted by lawmakers of both parties.

    Under any of these systems, the law can go further by prescribing the powerful step of “blinding” the line-drawers to politics – that is, directing them not to consider such factors as current party registration, past voting records, or the residence of any individual, such as an incumbent.

    What should districts look like?

    The most essential task in reform is to provide clear and objective rules for governing how districts are drawn. The three most widely accepted standards are as follows:

    All parts of a district should touch. Although this seems obvious, careful language helps prevent such tricks as circuitous connections over water.

    Intuition tells us the difference between a district shaped like a turtle and one shaped like a tapeworm. But trusting to intuition is not necessary: at least two mathematical measures of compactness are widely employed. Colorado’s constitution prescribes the “total-perimeter test”: “Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible.” Other states use a “radius” or “length/width” test.

    Where possible, districts should respect the boundaries of smaller political subdivisions, such as counties and towns. One convenient measure of congruence is the number of county or town splits in a plan, with lower numbers ordinarily better.

    Other criteria are sometimes prescribed, but if too many are introduced, and if the commission is given latitude to balance among them, then a dangerous degree of discretion is reintroduced into the process.

    The Role of Technology

    Technologically, gerrymandering is a bit of an arms race. Politicians with access to so-called big data can now efficiently sort voters down to precincts, city blocks, and even buildings. That is why the problem will get worse absent correction. Yet quantitative methods hold out hope for the reform side as well, and not only by providing objective, replicable measures of goals like compactness.

    Geographic information systems (GIS) methods now allow members of the public using inexpensive software to analyze the full data set behind a map. In several states, that has meant members of the public could offer maps of their own or make well-informed critiques of legislators’ proposed maps. In one triumph for citizen data use, the Pennsylvania Supreme Court invalidated a map drawn by lawmakers as clearly inferior to a map that had been submitted independently by an Allentown piano teacher.

    Redistricting reform makes sense as a safeguard against the entrenchment and insulation of a permanent political class. Voters should choose legislators, not the other way around.

    [1] (Article I, Section 4 of the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”)