Sunday, November 28, 2004

Post by Charles Sabel

Since we are evidently and inevitably going to mix discussion of background issues of principle and method with foreground programmatic concerns, let me get out of line and gesture at the former, leaving the latter for the meeting itself.

A rough and ready definition of democracy might be: collective, public self-authorship of the law, under changing conditions of collective, public, self, authorship and law. Another way to get at the same idea is to say that the definition of democracy, like the definition of just about all institutions, is relational and recursive. What we mean by the legislature and legislation depends on whether there is a president (and whether she is imperious); whether there are political parties (and publics of a certain kind to generate them); whether there are trade unions and other associations with credible claims to faithfully represent great, stable interests in civil society; whether there are administrative agencies that can draw on and credibly redirect the efforts of well established economic actors; and whether there is a written constitution, enforced in some by an apposite tribunal. Since the “meaning” of democracy depends on the relation of these and many other parts to each other, we say democracy is relational. Since a key input into our view about what needs to be changed about democracy at any one moment is our assessment of the output of the current relations among democratic institutions, our understanding of democracy is recursive as well.

Though these remarks, translated into your favorite theoretical idiom, are unlikely to be controversial, they are not quite vapid. For instance, if you think democracy, and a fortiori constitutional democracy, is relational and recursive, then it can’t be very helpful to appeal, for example, for the restoration of the dignity of legislation. Such an appeal could make sense as a maxim of prudence (“Don’t try end runs around popular sovereignty’), or as a claim about the existence of a short list of time-tested and un-improvable democratic institutions. But in the first case we would want to know a lot more about the nature of the popular sovereignty that’s getting the run around, and how to respect it in actual legislation; and in the second we would want a list of normative and positive reasons—fidelity to the will of the Founders? Cognitive limits to human decision making in institutions?—that warrant the belief that some historically recognizable form of legislation is as dignified as democracy can get. Similarly, if democracy is relational and recursive it’s hard to make sense of reference to particular Court decisions except on the assumption that, with respect to the domain of those cases, the institutional background is for practical purposes so fixed that only doctrinal innovation matters. But then we would want to know whether, with regard to our epoch, and the fears of constitutional crisis that bring us together, such fixity is the exception or the rule.
In noticing these issues my point is not to suggest that we need to agree on a meta-narrative about the changing context of constitutional democracy world wide as a precondition to marshalling our thoughts about immanent constitutional dangers. On the contrary: From my point of view at least a useful by-product of discussion of diverse responses to the current mess could be clarification of some of the elements of such a narrative, and of a theoretically and politically inclusive language for programmatically elaborating them. But to achieve even that kind of intermediate, provisional objective, we need to be agreed about its feasibility and desirability. Are we?
And if we are not, is it because we just disagree about what’s in the cards—what’s changing and changeable? Or because (as I, availing myself of my denizen’s immunities, sometimes suspect) constitutional law, being part of parcel of the relational, recursive democracy of a very particular time, is currently unsuited to reflecting on the changes besting it from within and without? Meetings of the kind we are about to attend are, of course, the perfect occasion for determining whether these kinds of questions are as impertinent they will likely seem.
In any case, apologies for the ginger meta mannerisms. When the time comes I’ll tell the experimentalist story of democratic transformation, and the emergent role of courts in vindicating social rights (to education, to decent foster care) that have in recent years often seemed hopelessly remote from constitutional protection.

-- Charles Sabel