Academic journal article Harvard Journal of Law & Public Policy

Power to the Voters

Academic journal article Harvard Journal of Law & Public Policy

Power to the Voters

Article excerpt

I am, or try to be, a populist democrat. For decades, populism was largely invisible, barely a straw man, in the discourse of the law schools. Well-meaning ideologues of the governing class were accustomed to prescribe -- for the people-policies and institutional processes based on an assumption that government of and by the people is -- obviously and of course -- not to be trusted. Now, that is changing. Populism, today, is a recognized position in legal academia. The ideal is now embraced, its possible implications explored, by a growing band.(1)

Its meaning is, to say the least, contested. At a minimum, though, my premise is that populism should involve taking popular sovereignty more seriously than has been the practice in legal discourse. More particularly, it ought to involve a renewed emphasis on the value of political equality which -- in negotiation with values of political freedom and political community -- constitutes the democratic idea. From this it follows that populism ought to involve renewed respect for majority rule as generally the fairest practical guarantor of political equality among persons as well as the most practical way of approximating popular sovereignty over time.

If populism is imagined, above all, in terms of popular sovereignty and political equality, it may acquire a bite that cuts across and shakes up stultified left/right lines of "debate." By the same token, if notions of popular sovereignty and political equality are injected with a populist sensibility -- an acceptance and, more, an embrace of ordinariness: ranging from our own ordinariness (and so our deep equality) to the ordinariness of "the people"(2) -- these ideas may recover from their torpor of several long decades and acquire, at last, new critical vigor.

What such a re-orientation yields is a back-to-basics approach to the revitalization of democracy. Let me sketch, in three steps, a few fundamental features of this approach.


The most potent rationalizations for "governance" of the masses by enlightened elites are, nowadays, packaged as paeans to democracy. Against a backdrop of perfectionist premises, they insist that participation by the mass of real people in the real world of politics has value only if other conditions are met -- only if reality is radically transformed in one way or another. They deplore the inadequacy (even the "corruption") of democracy as we know it. And they conclude, regretfully of course, that the world is not yet safe for democracy. This line of argument must be rejected at the outset as a barrier, rather than a roadmap, to democratic revitalization.

The most transparently naked rationalization focuses on outcomes of political processes. The political empowerment of ordinary people is good, so the argument goes, only insofar as its likely outcomes are good. Today, the argument continues, the masses tend to have "bad values" or, at the very least, a mistaken understanding of their own interests. Hence, bad outcomes. There are, sad to say, some who would call themselves populists who take this line. The assumption of these rationalizers of political elitism is that they know better and, so, that they and their ilk should "lead" -- be the "spokesmen" or "advocates" for -- ordinary people. For them, political equality is but an "idealistic" fantasy -- to be used, if at all, as a cynical smoke screen.

A somewhat more subtle version of the argument focuses on the quality of political processes. The participation of the masses in politics is good, it asserts, only so long as the political process is otherwise a good one. Today, it continues, our political process is utterly spoiled -- poisoned by a few who, with clever thirty second spots, play on the ignorance, shortsightedness and emotions of the many. Thus, it concludes, the political influence of the many may have to be restricted. Again, there are self-styled populists who make this argument. …

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