98 clmlr 267 - Columbia Law School - Columbia University

Columbia Law Review
March, 1998 *267 A CONSTITUTION OF DEMOCRATIC EXPERIMENTALISM Michael C. Dorf
Charles F. Sabel [FNa1] Copyright © 1998 Directors of The Columbia Law Review Association, Inc.; Michael C. Dorf, Charles F. Sabel In this Article, Professors Dorf and Sabel identify a new form of
government, democratic experimentalism, in which power is decentralized to
enable citizens and other actors to utilize their local knowledge to fit
solutions to their individual circumstances, but in which regional and
national coordinating bodies require actors to share their knowledge with
others facing similar problems. This information pooling, informed by the
example of novel kinds of coordination within and among private firms, both
increases the efficiency of public administration by encouraging mutual
learning among its parts and heightens its accountability through
participation of citizens in the decisions that affect them. In democratic experimentalism, subnational units of government are
broadly free to set goals and to choose the means to attain them.
Regulatory agencies set and ensure compliance with national objectives by
means of best-practice performance standards based on information that
regulated entities provide in return for the freedom to experiment with
solutions they prefer. The authors argue that this type of self-government
is currently emerging in settings as diverse as the regulation of nuclear
power plants, community policing, procurement of sophisticated military
hardware, environmental regulation, and child-protective services. The Article claims further that a shift towards democratic
experimentalism holds out the promise of reducing the distance between, on
the one hand, the Madisonian ideal of a limited government assured by a
complex division of powers and, on the other hand, the governmental reality
characteristic of the New Deal synthesis, in which an all-powerful Congress
delegates much of its authority to expert agencies that are checked by the
courts when they infringe individual rights, but are otherwise assumed to
act in the public interest. Professors Dorf and Sabel argue that the
combination of decentralization and mutual monitoring intrinsic to
democratic experimentalism better protects the constitutional ideal than do
doctrines of federalism and the separation of powers, so at odds with
current circumstances, that courts recognize *268 the futility of applying
them consistently in practice by limiting themselves to fitful declarations
of their validity in principle. For example, conventional administrative law imposes external judicial
checks on administrative agencies, obliging judges to choose between
superficial scrutiny of formal proprieties and disruptive, indeed often
paralyzing, inquiry into what an idealized agency might be expected to do.
By contrast, democratic experimentalism requires the social actors,
separately and in exchange with each other, to take constitutional
considerations into account in their decisionmaking. The administrative
agency assists the actors even while monitoring their performance by
scrutinizing the reactions of each to relevant proposals by the others.
The courts then determine whether the agency has met its obligations to
foster and generalize the results of this information pooling. Agencies
and courts alike use the rich record of the parties' intentions, as
interpreted by their acts contained in the continuing, comparative
evaluation of experimentation itself. In the administrative and related
settings, the aim of democratic experimentalism is to democratize public
decisionmaking from within, and so lessen the burdens on a judiciary that
today awkwardly superintends the every-day workings of democracy from an
external vantage point. Finally, the Article reconceptualizes constitutional rights. Relying in
this and other regards on ideas associated with early-twentieth-century
American pragmatism, the Article treats disagreements over rights as
principally about how to implement widely shared general principles. Under
the heading of "prophylactic rules" and related doctrines, the United
States Supreme Court has recognized that there are often a variety of
acceptable remedies for a violation of rights or a variety of acceptable
means of achieving a constitutionally mandated end. The authors argue for
a radical extension of these doctrines, in which judicial recognition of a
general, core right, permits substantial experimentation about how to
implement that right. They propose institutional mechanisms to facilitate
such experimentation. The authors contend, however, that with rights, as
with other constitutionally entrenched principles, means and ends cannot be
neatly separated, so that experimentation at the periphery also redefines
the core, ultimately challenging the very distinction between core and
periphery. TABLE OF CONTENTS
I. The Constitutional Predicament as Prologue ..........................
............. 270 A. The Crisis .......................................................
.......................... 270 B. Proposed Solutions .............................................
..................... ...272 C. Limitations of the Existing Categories .........................
.................274
D. A New Form of Deliberation ..............................................
.........283 E. Constitutional Interpretation ..................................
.....................289 II. Centralized and Decentralized Organizational Forms ..................
.........292 III. Democratic Experimentalism ..........................................
.................. 314 A. Good Government under Conditions of Volatility and Diversity ...
. 315 B. Local Government on Pragmatic Lines: Directly Deliberative Polyarchy .........................................................
............................ 316 IV. Pieces of the New Polyarchy: Examples of Bootstrapping Reform ......
323 A. Family Support Services ........................................
.................... 324 B. Community Policing in Chicago ..................................
............... 327 C. Simultaneous Design: Military Procurement ......................
........... 332 D. Limitations of Piecemeal Efforts ...............................
.................. 336 V. The National Framework ..............................................
................... 339 A. Congress .......................................................
........................... 341 B. Administrative Agencies ........................................
.................... 345 1. Benchmarking .................................................
........................ 345 2. Obstruction ..................................................
........................... 348 3. Novel Forms of Organization ..................................
.................. 354 C. Antecedents and Lessons ........................................
.................... 356 1. National Highway Traffic Safety Administration ...............
......... 357 2. Antecedents in the Forest Service ............................
.................. 364
3. Nuclear Power Plant Safety ...............................................
....... 371 4. Innovative Environmental Regulation ..........................
.............. 373 D. The Role of Courts in the National Experimentalist System ........
. 388 1. The Dilemma of Judicial Review as the Muddle of Means and Ends ..............................................................
.............................. 390 2. Experimentalism and the Giving of Reasons ....................
.......... 395 3. A Partial Reconceptualization of Judicial Review and Rights ...
... 398 E. Criticisms and Big Worries .....................................
.................. 404 F. Constitutional Scope ...........................................
..................... 418 VI. Federalism ..........................................................
......................... 419 A. The Arc of Federalism ..........................................
.................... 421 B. New York v. United States ......................................
.................. 423 C. Toward a New Delegation Doctrine ...............................
............ 428 D. Experimentalist Federalism in Existing Legislation .............
....... 432 VII. Democratic Experimentalism and Separation of Powers .................
.. 438 A. Separation-of-
Powers Doctrine and its Discontents .................... 439 B. Present and Future Solutions ...................................
................. 442 VIII. Individual Rights ...................................................
..................... 444 A. The Awkward Consensus on Rights ................................
.......... 446 B. Pragmatist Conceptions of Rights in Existing Doctrine ..........
.... 452 C. Institutional Correlates .......................................
.................... 459
D. The Transformative Potential of Experimentalist Methods ......... 465 Conclusion ............