Second post in a week on legal scholars beginning to understand the obvious. And then a push-back (historically speaking) from the pedants.
Jeremy Waldron [he of hate speech] reviews David Cole in the NYRB
“The Constitution doesn’t mean what it used to mean”—when that’s our impression, our first impulse is to blame (or praise) activist judges. But the most feverishly activist judge cannot make any changes at all until a case comes before him or her. Judges don’t just wake up and say, “Let’s change how the Constitution is understood on same-sex marriage or campaign finance or religious liberty.” They can only respond to lawsuits that have been brought, so that if one were to account seriously for the changes that have taken place in these matters, one would have to recall the resolve and tenacity of citizen litigants, the organizations they created, the energy they invested, and the strategies they pursued right across the political process.“The Constitution doesn’t mean what it used to mean”, because words don't mean what they used to mean. So many search terms I could use. This'll do
I don’t expect to read a better account of this than David Cole’s new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law. It transforms one’s understanding of the contributions of other forums—state legislatures, for example, and public opinion (at home and abroad)—in campaigns that eventually culminate in Supreme Court decisions. For not only is it citizen activists who bring cases before courts, it is their hard work that sets up a background in politics and public opinion against which constitutional change begins to seem sensible. Of course it doesn’t always work. Courts are sometimes obtusely recalcitrant or out of touch with public opinion. We can’t be confident that a majority of justices wants what the people want. And anyway, public opinion is never just one thing. Indeed its hydra-headed malleability is crucial to the campaigns that Cole describes.
From the same source (academic Twitter), later in the same day.
Achen and Bartels, Princeton's Donald E. Stokes Professor in Public and International Affairs, Emeritus, and the May Werthan Shayne Chair of Public Policy and Social Science at Vanderbilt University, spent 15 years testing such theories, analyzing voting patterns and filling in an outline first sketched on a dinner napkin. The result is a book published in April by Princeton University Press, "Democracy for Realists: Why Elections Do Not Produce Responsive Government," that challenges popular conceptions of how American democracy works and lays the groundwork for a new approach.Determinism for thee, free will for me.
"The upshot is that ideas don't flow up from people to parties and candidates," Achen said. "Ideas flow downward to the people. Voters have loyalties and identities that are central to understanding what happens in elections. Parties and interest groups mobilize these identities and tell people how to think about their problems, as opposed to individual people selecting politicians based on the policy positions they prefer."
That conclusion challenges what Achen and Bartels call the "folk theory of democracy," which is the idea that voters have policy preferences and select candidates based on those preferences or — in cases of a referendum — voters make policy directly based on their policy preferences.
"That really, really doesn't work," Achen said. "People don't have the time and interest to follow issues, and they make serious mistakes and harm themselves in the process."
The Mannerist and the Baroque exist side by side.
Obviously I haven't read the book. Blurbs refer to it as a call for a return to an appreciation of interest groups, and that would dovetail with Cole's points. But again what of the "watchmen"? Achen and Bartels are arguing for a realist understanding of the "folk", making a critique of liberal individualism as it applies to the self-understanding of the majority, but not as it applies to the elite, the authors and their peers.
I keep forgetting these books are written for people who take theories of rational action seriously as a model of behavior. People are predictable, not rational, and advanced degrees don't increase the odds.
All of us are most people most of the time