Academic journal article Northwestern University Law Review

Response: On Substantiation of Positive Social Theory

Academic journal article Northwestern University Law Review

Response: On Substantiation of Positive Social Theory

Article excerpt

I. INTRODUCTION

I am grateful to the editors of the Northwestern University Law Review for devoting an issue of the Law Review to a symposium on the countermajoritarian difficulty, a topic that was proposed by Professor Stephen Calabresi and me.' The topic had already been much discussed-to say the least-but the contributions to this Symposium amply justify our belief that interesting things remained to be said. Contributors were invited either to comment on my Article2 or to advance their own views of the difficulty. They have done the one and the other in various combinations, and for the most part no responsive comment by me seems necessary or appropriate. The contributions of Professor Barry Friedman 3 and, to a certain extent, Professor Andrew Koppelman,4 however, raise interesting methodological questions about the substantiation of positive social theory. I treated those questions briefly in my Articles but Friedman in particular lays down challenges to my thesis on that front. I am not sure I fully understand his position on the issues he raises, but those issues are sufficiently important that further treatment of them in this Response might be useful.

For purposes of this Response, the thesis of my Article in this Symposium can be restated in this paragraph and the next. Spurred on by the incentive of competitive elections, American democracy is a very effective engine for producing conversation about public affairs directed to essentially the entire adult population. There is "primary" conversation directed mostly to the citizenry from candidates for office, elected officials, and government employees. And there is an even more extensive "secondary" conversation among and between media, organized groups, and individual citizens. Although ordinary citizens can be active participants in either the primary or secondary conversation, for the most part they are an audience for what is said by others. Despite this largely passive role, I posit that this democratic conversation generates a sense of involvement on the part of the populace in the processes of government, which in turn fosters reconciliation to governmental decisions with which members of the population might otherwise have found themselves in active disagreement. I have no way directly to test the suggested causal link between the democratic conversation and citizens' sense of involvement, but there is a good deal of indirect evidence. Cohesive force exerted by the democratic conversation can, for instance, help explain some of the central features of American democracy, including broad extension of the right to vote, the use of singlemember geographically defined legislative districts, bicameralism, a separately elected executive, the vibrancy of state and local units of government with independently elected officials, weak political party discipline, and the central role accorded to freedom of communication.6 These features of American democracy emerged and took shape at different times and for various reasons, but my thesis is that their endurance can be explained in part because the far-flung conversation they help stimulate allows American democracy to "weather its storms."7

The cohesive force of the conversation can also help explain behavioral and attitudinal phenomena, such as why people vote in large numbers and their patterns of attention and inattention to various things about American democracy. In an earlier work, I advanced a conversational explanation of why the conceptually appealing idea of "extra" votes for parents on account of their children is virtually unheard of in American political discourse.8 I have also offered a conversational explanation for the seeming satisfaction with the United States Senate as a legislative body.9 And my Article in this Symposium focuses on the attention paid to the socalled "counter-majoritarian difficulty" said to be presented by judicial review in the name of the Constitution. …

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