Exit, Voice, and Disloyalty
Gerken, Heather K., Duke Law Journal
This Lecture begins with a puzzle about Albert Hirschman's famous work, Exit, Voice, and Loyalty: (1) Why do we make much of exit and voice but utterly neglect loyalty? It's a question that goes well beyond Hirschman's book. For example, much of constitutional theory is preoccupied with a single question: What does a democracy owe its minorities? And most of the answers to this question fit naturally into the two categories Hirschman made famous: voice and exit. On both the rights side and the structural side of constitutional theory, scholars worry about providing minorities with an adequate level of influence. And the solutions they propose almost inevitably offer minorities a chance at voice or exit, as if no other option exists. The First Amendment, for instance, offers minorities the right to free speech (voice) and private association (exit). Similarly, structural arrangements give minorities the chance to vote in national elections (voice) and in state elections (exit).
Exit and voice are not, however, the only options available to a minority group seeking influence. That's because much of the nation's administrative structure looks more like Tocqueville's democracy than Weber's bureaucracy. In our highly decentralized and partially politicized system, minorities can wield influence over national policy because they routinely administer it. (2) State officials regularly run federal programs, often with governors and state legislators serving nominally bureaucratic roles. Federal policy is often implemented by local juries and local prosecutors, state and local school boards, and state-created agencies. Because national minorities often constitute local majorities in the United States, these institutional arrangements ensure that those with outlier views help set federal policy.
As policymaking insiders, minorities can resist federal policy from within rather than challenge it from without. A jury can nullify a law it dislikes. A state agency may be hostile to the federal law it is implementing. A school board can find ways to introduce religion into the classroom. Bureaucrats may administer an entitlements program in a less generous fashion than federal officials desire. Voice and exit thus aren't the only paths of influence for minorities. Minorities can also exercise agency in their ongoing quarrel with the center because they are often the center's agents. (3)
Retooling Hirschman's frame to include agency, then, doesn't just draw our attention to an underappreciated avenue of minority influence. It raises questions as to why voice and exit have entirely dominated constitutional theory--why scholars who are interested in minority empowerment have overlooked the role that administrative arrangements can play in furthering that goal. We are all aware that bureaucrats wield power when they administer a program--we call it the principal-agent problem. And we are all aware that the principal-agent problem can be particularly acute in the context of a partially politicized, highly decentralized system like our own. But the productive possibilities associated with the principal-agent problem have been neglected by constitutional theory.
The notion of loyalty plays a role in explaining this neglect, though it isn't the type of loyalty that Hirschman had in mind.
Because we typically think of administrative arrangements in Weberian rather than Tocquevillian terms, we treat bureaucratic resistance as an act of disloyalty--as a problem to be solved rather than a feature to be celebrated. We laud federalism and the First Amendment because they ensure a healthy level of resistance to an overweening national power, but when minorities use their administrative muscle to challenge national policy from within, we worry about parochialism or lawlessness. We assume, in short, that the principal-agent problem is always a problem.
That is a mistake. Although the principal-agent problem certainly involves costs, these decentralized governing units constitute unique sites for minority influence. …