Academic journal article
By Koppelman, Andrew
Constitutional Commentary , Vol. 20, No. 1
"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. …