The Bill of Rights and the Emerging Democracies

Today, the influence of the US Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, the German Basic Law, the post-war French constitutions, and the European Convention on Human Rights. These documents have influenced recent developments in the emerging democracies of eastern and central Europe

COVID-19 and American Democracy

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell\u27economia on responses to the COVID-19 pandemic by governments around the world

Expert Knowledge, Democratic Accountability, and the Unitary Executive

Proponents of the “unitary executive” theory hold that “all federal officers exercising executive power must be subject to the direct control of the President.” But how, as a constitutional matter, should such presidential control be defined, and how should it be effectuated? Unitarians are not united. Kevin H. Rhodes and Professor Steven G. Calabresi identify at least three distinct versions of the theory, which reflect a diversity of responses to those questions. The strongest or most aggressive version (which may also find the least support in the relevant jurisprudence) holds that the President may “supplant any discretionary executive action taken by a subordinate with which he disagrees, notwithstanding any statute that attempts to vest discretionary executive power only in the subordinate.” In other words, Congress may have assigned a specific task or decision to another official, but the President is constitutionally empowered to substitute their own judgment for the subordinate’s. A weaker version holds that the President may not supplant another official, but that they may “nullify or veto [the subordinate official’s] exercises of discretionary power.” The President cannot act in the subordinate’s place, but the President can require the subordinate to reconsider their positions. A third version, which appears to be the most modest, at least as a formal matter, holds “that the President has unlimited power to remove at will any principal officers (and perhaps certain inferior officers) who exercise executive power.” In other words, the President can neither nullify their subordinates’ decisions nor substitute their judgment for that of their subordinate; but at least with respect to those the President appoints, the President can replace them with others until they find someone willing to do their bidding. This version may seem to be the most modest because the President’s formal power is purely remedial (and does not itself undo any decision already made), but it may well be the most potent as a practical matter. Indeed, the removal power is often considered a proxy for actual supervision and control, based on the assumption that most executive branch officials will ordinarily choose to follow the President’s wishes rather than risk forfeiting their positions, without regard to whatever degree of independent decision-making authority Congress has given to them

Democratic Conditions

According to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who “represent” them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions about the future of representative democracy and the conditions necessary for it to flourish. What, then, are the conditions of democracy? Among other things, citizens must share some sense of solidarity and common purpose. There must be a quality educational system committed to providing everyone—regardless of race or economic status—with an appropriate foundation for citizenship and personal fulfillment. There must be equal employment opportunity. Citizens must be well educated, and they must have access to credible news sources. Public officials must not be seen to cater to the rich or famous or seek short-term partisan advantage at the expense of long-term systemic values and stability. If a democratic society does not strive to satisfy these conditions, among others, representative democracy will either be brought down or so hollowed out as to become unrecognizable. Rather than attempting the impossible feat of addressing all of the conditions necessary for the flourishing of a democratic society, this Essay first explores what we mean to say when we talk about the concept of representative or constitutional democracy and then considers three of the ways in which our current governmental and political system may frustrate the practice of constitutional democracy. First, many Americans hold an idealized view of our democracy that prevents us from comprehending the full significance of the anti-democratic features of our constitutional system and hampers efforts to preserve and strengthen it. Second, our idealized view of American democracy prevents us from acknowledging that one important aspect of our constitutional tradition has been a preference for defining our political community in terms that are exclusionary, rather than inclusive. That, in turn, blinds us to the strong influence that this exclusionary preference continues to exert on our political life. Third, constitutional democracy requires nothing so much as a fair electoral system, but the ordinary political process often cannot ensure such fairness because politicians control the process and have little incentive either to draw maps that are fair or to undertake other necessary reforms. In many states, the people lack the power to assign these decisions to more disinterested agents, and, in recent years, the courts have tended to hold that such matters are unsuitable for judicial resolution. This Essay argues that these three obstacles must be overcome if representative democracy is to flourish