How "decentralization" rationalizes oligarchy: John McGinnis and the Rehnquist Court.

• Author: Koppelman, Andrew
• Position: Response to John McGinnis, California Law Review, vol. 90, p. 485, 2002

"Decentralization" sounds wonderfully democratic. It implies that people are becoming masters of their own destinies, freed from the oppression of distant functionaries who neither know nor care about the particulars of their lives. Strangely, however, "decentralization" can sometimes be deployed to disguise oligarchic rule by an unaccountable elite.

The paradox is starkly, if inadvertently, displayed in Professor John McGinnis's explication and defense of the Rehnquist Court's decisions on federalism and free association, "Reviving Tocqueville's America." (1) Professor McGinnis argues that decentralization is a central theme of the Rehnquist Court's jurisprudence. He claims that this idea justifies the court's work, in the same way that John Hart Ely's representation-reinforcement theory justified much of the work of the Warren Court. His attempted justification fails, however, because the idea of decentralization cannot be implemented in the way he contemplates without policy determinations that are essentially legislative. "Decentralization" thus becomes a rationalization for judicial oligarchy.

This failure of justification sheds important light on the Rehnquist Court's work. Professor McGinnis is only the latest, if the most systematic, of many scholars who have defended the federalism and association decisions for promoting decentralization and local control. (2) If Professor McGinnis does not succeed in defending these decisions in these terms, then perhaps the thing cannot be done. Perhaps the Rehnquist Court's work in this area is not defensible at all.

Professor McGinnis's work is a major contribution to constitutional scholarship. It offers the first unified account of the jurisprudence of the Rehnquist Court. Professor McGinnis argues that the central theme of the Rehnquist Court is "decentralization and the private ordering of social norms." (3) The overarching theme (though Professor McGinnis does not often use this term) appears to be the principle of subsidiarity, which holds that "central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more immediate or local level." (4)

Professor McGinnis argues that this idea of decentralization is the basic idea behind the Court's decisions. With respect not only to federalism and freedom of association but also the establishment clause and the jury, the Court's overriding concern is "protecting the conditions of spontaneous order so that norms can be discovered through competition." (5) The Rehnquist Court's jurisprudence, he argues, "sustains a social order constructed from below rather than imposed by the government from above." (6)

Professor McGinnis's ambition is to do for the Rehnquist Court what John Hart Ely famously did for the Warren Court: show that its decisions have a common theme and that this theme is democratically legitimate. Ely argued that the Warren Court's prime concern was not the undemocratic one of declaring the country's fundamental values, but was rather protecting the integrity of the democratic process. Ely was troubled by Alexander Bickel's claim that "judicial review is a countermajoritarian force in our system," so that "when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it." (7) Under the jurisprudence of the Warren Court, Ely argued, "the selection and accommodation of substantive values is left almost entirely to the political process," (8) and judicial review is concerned solely with "what might capaciously be designated process writ large--with ensuring broad participation in the processes and distributions of government." (9) Ely's answer to Bickel's countermajoritarian difficulty was to assign to the judiciary only that task with which the legislature cannot be trusted: "to keep the machinery of democratic government running as it should." (10) The principal themes of the Warren Court, Ely thought, were preventing incumbents from entrenching themselves in power and protecting minorities from prejudice, and both of these could be justified in terms of representation-reinforcement.

Professor McGinnis thinks that the Rehnquist Court, too, generally avoids the countermajoritarian enterprise of declaring substantive values. The Rehnquist Court's jurisprudence, like Ely's, "can be seen as a process jurisprudence, one that seeks to convert the preferences of the people into social norms." (11) The comparison, Professor McGinnis thinks, works to the advantage of the Rehnquist Court:

In fact, the Rehnquist Court's jurisprudence better filtrates popular sentiment than Ely's because it follows the Constitution in making use of a variety of protected structures such as the states, civic associations, both secular and religious, and juries, when these structures better achieve the goal of government by the people than national democracy. (12) His aim is primarily to describe rather than to defend the Rehnquist Court, but he writes that "in showing its coherence and substantiality I necessarily suggest that the Rehnquist Court's jurisprudence has greater plausibility than many have thought." (13)

Professor McGinnis's descriptive analysis is penetrating, but its coherence does not give the Court's work plausibility, if that word indicates valid reasoning toward defensible results. It takes more than coherence to make something plausible. Suppose that the police have in their custody Fester, who has just stabbed three strangers on the street. They seek to account for his conduct. When Fester is interviewed, he explains that the CIA has planted a transmitter in his brain, and that the three people who he stabbed were all CIA agents who were operating the transmitter. After he tells us this, his actions will be considerably more coherent to us than they were before, and we will have a pretty good idea of the reason for the attacks. We will not, however, conclude that his reasons were plausible ones. In this article, I will argue that, while the judges of the Rehnquist Court may possibly believe that they are facilitating democratic self-governance, this notion has about as much plausibility as Fester's belief that the CIA has put a transmitter in his brain.

Part I will explain why subsidiarity is not a justiciable principle. Part II will explore the doctrinal pathologies produced by the Rehnquist Court's efforts to promote this principle. Part III will show that Professor McGinnis's defense of the Court's work relies on dubious empirical assumptions. The conclusion argues that a true jurisprudence of subsidiarity would look very different from the work of the Rehnquist Court.

1. THE NON JUSTICIABILITY OF SUBSIDIARITY

   The basic problem is that subsidiarity, which Professor McGinnis shows is the animating principle of the Rehnquist Court's jurisprudence, is a principle that the judiciary is ill suited to enforce in any but the weakest fashion. Deciding which topics are apt for decentralization is an inescapably political judgment, and judges cannot adjudicate such questions without imposing their own political views on the rest of us.

   It is impossible to disentangle the question of an institution's capacities from that of what we want the institution to do. The fact that an institution tends to make good decisions is good reason to judge it competent. The fact that an institution tends to make bad decisions is good reason to judge it incompetent. (Of course, in both cases we must be able and authorized to distinguish good decisions from bad ones.) We have institutions for reasons, and we judge the institutions by how well they serve our reasons for having them. (14)

   This entanglement of institutional capacity with goodness entails three reasons why the enforcement of subsidiarity requires inescapably political judgments.

   First, and most importantly, no legal authority can help judges to determine which collective ends are worth pursuing.

   That is an ultimate value judgment about which the Constitution is largely silent, and so is an appropriate object of democratic deliberation. Critics of Ely have correctly noted that representation-reinforcement depends on substantive value judgments. (15) But the value judgments that underlie Ely's theory--that it is important for citizens to have an effective vote, that minorities should not suffer because of prejudice against them--are a good deal less controversial than the ones that enforcement of subsidiarity would need to rely on. Who decides whether the federal government has a more legitimate interest in economic than in noneconomic matters? Whether federal law should address endangered species, or the draining of wetlands, or cloning human beings? Which kinds of discrimination should be prohibited? Which kinds of association are so valuable as to be worthy of protection? The answers to these questions are not procedural. They are the stuff of substantive politics. As Robert Dahl observes, control over the agenda is one of the central criteria for determining whether a decisionmaking process is democratic. (16)

   Second, even if judges know what ends ought to be pursued, they have a very limited ability to compare the capacities of institutions to pursue those ends. They do not have comparative data, nor have they any way to obtain such data. If they try to decide such matters, their political biases inevitably rush to fill the vacuum. This problem has led courts in Europe to be wary of deciding subsidiarity questions even when they were given much clearer constitutional authorization than the Supreme Court has gotten. In the face of a clear textual mandate, the German Constitutional Court has often declined to consider whether federal legislation is "necessary," holding that "necessity" is a matter for legislative...