The Necessity for Constrained Deliberation

By Epstein, Richard A. | Harvard Journal of Law & Public Policy, Fall 2000 | Go to article overview

The Necessity for Constrained Deliberation


Epstein, Richard A., Harvard Journal of Law & Public Policy


The revitalization of democracy requires some fundamental structural changes in order to avoid the nightmarish scenarios that Charles Fried outlined,(1) scenarios that might in fact, in the current political climate and constitutional regime, be enacted into law. Currently, there are serious problems with American democracy, including low participation in electoral politics and low voting rates. Indeed, these offer powerful evidence of the high levels of public cynicism about how this nation conducts itself in its collective affairs. What does this level of apparent political malaise reveal?

The answer stems from two very simple facts: first, we demand too much from our democratic institutions; and second, we fail to direct and organize political deliberation by constraining the permissible outcomes that we are able to achieve through these democratic processes. In other words, the major structural weakness of American democracy today is that it has become a pure political majoritarian machine, unconstrained and unmoored by any discernible constitutional principle.(2) I believe that the only way in which we can revitalize and improve our level of discourse and deliberation is to change fundamentally the constitutional ground rules in which our political institutions operate.

One common prescription for improving democracy dwells on our need for more thoughtful deliberation about the common good. Yet every time I hear the clarion call for more deliberative democracy, I put my hand on my wallet. So, in this moment of disinterested reflection, I ask myself why I assume this defensive posture. The unfortunate answer is that a political democracy, as we now have it, contains no substantive limitations that define the outer boundaries of proper political deliberation.

Charles Fried talked about the brute fact that today "We the People" are entitled to regulate, for example, whether you smoke or whether you carry guns.(3) Additionally, it is certainly commonplace that democracy can now regulate the size of your hallway leading to your bathroom so as to make sure that it will be able to accommodate a wheelchair,(4) and when you may visit a medical specialist under the so-called Patient's Bill of Rights.(5)

The last example is especially telling because it illustrates a basic transformation in political orientation. The real (1791) Bill of Rights was directed to limit the ability of political institutions to trench on private rights. The new Bill of Rights empowers the government to coerce one person to act in ways that may benefit another. This rhetorical switch allows more governmental intrusions into what used to be private space and private transactions.

To avoid this current slippage, we should think less about democracy and more about republicanism.(6) To make my meaning clear, I treat republicanism in a narrow, somewhat formalistic way, by which I mean res publica.(7) A sound constitution must make sure that public deliberation is directed towards public matters, just as the Latin suggests. It therefore becomes incumbent on us to develop a theory whereby public matters are not expanded insensibly to include whatever topic the public happens to fancy or worry about at any given time.

The point of departure for this analysis turns on the instructive concurrence between economics and politics, namely, in the technical economic definition of public goods: things that cannot be provided to one unless they are simultaneously provided to all. No matter how I examine the problem, I cannot understand how the minimum price charged for the sale of a quart of milk (which was found to be "affected with the public interest" in Nebbia v. New York(8)), or the size of my hallway in my house, or my choice of job, counts as a public good under any plausible rendition of that definition. By hewing to that economic definition in politics, we may find a way, probably the only constitutional way, to sweep the table clean so that doubters are not able to argue that it is only rank political bias or opportunism that keeps these matters out of the political domain. …

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