Dissenting by deciding.

• Author: Gerken, Heather K.

INTRODUCTION I. THE FORM DISSENT TAKES A. The Identity of the Dissenter B. What Makes Dissenting by Deciding Different? II. THE RELATIONSHIP BETWEEN FORM AND FUNCTION: DISSENTING BY DECIDING AND THE GOALS OF DISSENT A. The Role of Dissent in Improving Democratic Decisionmaking." Visibility and the Marketplace of Ideas 1. Making dissent visible: arguments" versus decisions 2. Comparing institutional alternatives: Sunstein and the dynamics of democratic decisionmaking B. Dissent and the Value of Self-Governance: Speaking Truth to Power or with It 1. Forging civic ties'. 2. Comparing institutional alternatives: federalism C. Identity and Expression: The Relationship Between Collective Dissent and Public Action 1. The politics of recognition: isolation and enclaves 2. Dissenting by deciding: fusing the collective act with the public one 3. Trade-offs and risks III. WHEN SHOULD WE FAVOR DISSENTING BY DECIDING OVER CONVENTIONAL DISSENT'?.: GENERATING A PRODUCTIVE CONVERSATION BETWEEN PERIPHERY AND CENTER A. The Center's Opening Conversational Gambit B. The Length of the Conversation C. The Dissenters' Target Audience D. The Institutional Site for the Dissenters' Response E. The Composition of the Decisionmaking Body F. The Identity of the Dissenter." Average Citizens Versus Dissenting Elites. 1803 CONCLUSION INTRODUCTION

Everyone, it seems, believes in dissent. (1) Our political mythology promotes a romantic vision: the solitary voice of reason, Holmes's prescient dissents, the lone juror in Twelve Angry Men. (2) When talking about the role dissenters play in democratic governance, scholars offer a more workmanlike view. The conventional understanding of dissent as a practice recognizes that dissent is more than culturally resonant; it is a political strategy. Like any minority faction, dissenters can often get the majority to soften its views or at least obtain a concession or two. Scholars thus grasp that dissenters can wield power through participation or presence rather than persuasion.

On this conventional understanding of dissent, dissenters have two choices with regard to governance: act moderately or speak radically. To the extent that would-be dissenters want to govern-to engage in a public act, to wield the authority of the state (3)--they must try to influence the decisionmaking process. They will thus bargain with their votes and with the threat of public dissent to gain concessions from the majority. Would-be dissenters who deploy this strategy get to take part in an act of governance, but it is governance of a moderate sort. And even if the dissenter gets an opportunity to wield the authority of the state, dissent takes the form of an argument, one designed to persuade other members of the decisionmaking body to take a different stance. Dissenters speak truth to power--to those with a majority of the votes.

Alternatively, would-be dissenters on the conventional view can speak radically--that is, they can freely state the position they believe that the majority ought to take in a dissenting opinion or minority report. In doing so, dissenters sacrifice the chance to be part of the governing majority and thus to wield the authority of the state. When they speak, it is with a critical rather than authoritative voice; they speak on behalf of themselves, not the polity. Dissent, again, takes the form of an argument, speaking truth to power.

What is missing from the usual account of dissent is a third possibility: that would-be dissenters could act radically. We have trouble envisioning dissent taking the form of state action. Our conventional intuition is that dissenters will try to change decisionmakers' minds, they may even moderate the decision rendered, but they will not--and ought not--determine the outcome of the decision unless they can persuade the majority to alter its views.

The assumption underlying this conventional view of dissent is that dissent means speaking truth to power, not with it. That is, we assume that dissenters will be in the minority on any decisionmaking body. After all, we might think, if would-be dissenters had enough votes to control the outcome of the decisionmaking process, they wouldn't be "dissenters" anymore. "Dissenting by deciding" seems like a contradiction in terms. (4)

The main reason we overlook the possibility of dissenting by deciding is that we tend to conceive of democratic bodies as unitary--there is one legislature rendering the law, one populace voting on the initiative. It is thus quite difficult to discern what power an electoral minority ought to have in making the decision. Our intuitions about the legitimacy of majority rule lead us to resist proposals to allow would-be dissenters to "take turns" (5) in exercising majority power or to create a minority veto. We thus assume that the best--perhaps the only--model for distributing power fairly is to let electoral minorities influence a governmental decision or, failing that, to make their disagreement known publicly.

Where decisionmaking power is disaggregated--as with juries, school committees, local governments, even states in a federal system--there are more options for thinking about how to allocate decisionmaking authority among members of the minority and majority. Disaggregated institutions create the opportunity for global minorities to constitute local majorities. They thus allow dissenters to decide, to act on behalf of the state. Dissenting by deciding occurs when would-be dissenters--individuals who hold a minority view within the polity as a whole--enjoy a local majority on a decisionmaking body and can thus dictate the outcome.

One example of dissenting by deciding occurred in San Francisco, California, shortly before the time of this writing. The city spent several weeks marrying gay and lesbian couples until a court put a halt to its activities. San Francisco officials surely understood that, with respect to the state population, theirs was the minority view. They surely understood their action to be a challenge of sorts to the prevailing view, (6) and that assessment was shared by others. (7) The principle embodied in San Francisco's decision was no different than the argument found in editorials, judicial dissents, and ongoing debates about the status of gays and lesbians in this country. What was different was the form the dissent took.

Dissenting by deciding also takes place when a school board chooses to mandate the teaching of creationism (8) or a jury filled with those who think our sentencing regime is too harsh vote to nullify. The members of each of these decisionmaking bodies subscribe to the same set of commitments held by individuals whom we would unthinkingly term "dissenters." But they express disagreement not through a Web log, a protest, or an editorial, but by offering a real-life instantiation of their views. While calling these examples "dissent" may seem counterintuitive, each involves an act of contestation, an attempt to express disagreement with the majority's view. What makes these acts unique is the unusual institutional form dissent takes in each instance.

Dissenting by deciding, then, should be understood as an alternative strategy for institutionalizing channels for dissent within the democratic process. But because dissent has not been conceptualized in these terms, scholars have not given adequate thought to which form of dissent is preferable, and when. This Article takes a first step in that direction by analyzing what makes decisional dissent different from our usual understanding of dissent. It organizes the analysis around three of the main reasons we value dissent: it contributes to the marketplace of ideas, engages electoral minorities in the project of self-governance, and facilitates self-expression. (9) The Article then considers the ways in which dissenting by deciding might further those goals differently than conventional dissent. In doing so, it starts to develop an analytic framework for thinking about whether and when we might value decisions that take this unusual form. Drawing upon a wide range of literatures--from First Amendment scholarship to cutting-edge research on group decisionmaking, from the literature on federalism to writings on the politics of recognition--the Article identifies what this framework reveals to be a recurring set of trade-offs in a wide variety of debates about institutional design. The payoff for thinking about dissent in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.

The argument runs roughly as follows: Conventional dissent and dissenting by deciding both further the main purposes that dissent serves, but in quite different ways. For example, some value dissent because they subscribe to the traditional Millian view that exposure to a wide range of views improves the quality of our decisions. To the extent we value a robust marketplace of ideas, however, dissent must be visible. And dissenting by deciding represents a different institutional strategy for making dissent visible than conventional dissent because it takes the form of a governmental decision, not an argument.

A second reason we value dissent is because it can engage electoral minorities in the project of self-governance. Some scholars have argued that creating avenues for expressing disagreement is crucial for establishing the government's legitimacy in the eyes of an electoral minority. Conventional dissent and dissenting by deciding further that end in different ways. Conventional dissent gives electoral minorities an opportunity to speak truth to power, either by acting moderately within a decisionmaking process or speaking radically outside of it. Dissenting by deciding goes one step further; it grants electoral minorities not merely the ability to protest, but the opportunity to decide--a chance to speak truth with power. Would-be dissenters need not moderate...