Democracy, Anti-Democracy, and the Canon

Symposium: The Canon(s) of Constitutional La

The Neglected Value of Effective Government

Democratic systems inevitably seek to reflect and realize a range of values. But democratic and legal theory in recent decades have given too little attention and weight to the value and importance of delivering effective government. Much of democratic theory and legal scholarship on democracy focuses on values such as political equality, fair representation, democratic deliberation, political participation, and individual rights, among other values. But less weight is given to the capacity of government to deliver effectively on the issues citizens care about most urgently. Yet a defining feature of—and threat to—democracy in recent years is the perceived failure of democratic governments, in the United States and throughout the West, to deliver effectively on the issues their members care most about. This Article aims to bring greater attention to the importance of effective government by illuminating tensions that arise between effective government and other important democratic values. The Article focuses on tensions (1) between political accountability and effective government; (2) between political equality and effective government; (3) between open government and effective government; (4) between “fair” representation and effective government (including a critique of current proposals for proportional representation); and (5) between process and participation and effective government. Taken as a whole, the point of these examples is to bring attention to the value and importance of state capacity to deliver effectively. Viewing current arrangements and proposed reforms through the lens of effective government opens up new directions for scholarship on democracy. But the first step is to recognize that the failure to deliver effective government is roiling most democracies today, and that if democracies cannot overcome that challenge, popular frustration, anger, distrust, or worse, will continue to grow

The Unintended Cultural Consequences of Public Policy: A Comment on the Symposium

In this essay, I want to try to build on it in order to suggest forms a genuinely New Public Law scholarship might take. My aim is to embrace much of what New Public Law thought has urged: the marginality of common law doctrine or judicial decisionmaking; the need to attend to profound disaffections with the modem regulatory state; an acceptance of the complex, dynamic relationship of public policy and private understandings; a recognition that public values are constituted not only at the grandest levels of policy formation, but also in the myriad microscopic day-to-day experiences of policy. In my view, taking these insights seriously requires neither new, formal, analytical definitions of law nor further abstract efforts to determine whether there is a New Public Law scholarship and how we might know it. Instead, incorporating these developments ought to lead to immersion in the concrete structures of specific public programs and policymaking techniques. Thus, this essay not only explores several contemporary areas of policy concern, including welfare, medical care, pro bono legal services, and military conscription, but also looks more generally at the characteristic tools of current approaches to the making of public policy