Friday, November 27, 2009

More Thoughts about the Judiciary

So this morning, The Wichita Eagle ran a version of my post from last week decrying the involvement of our local school district--and, in principle, all school districts anywhere really--in a possible lawsuit against the state over cuts in levels of school funding. Allow me to add a couple of clarifications and addendum.

To reiterate what I said before, my problem isn't with getting more funding for schools (please! raise my taxes! give the public schools more money!), but rather with the manner in which one does so. If I could put my thoughts into one (long) sentence, it would be: whereas access to and participation in basic collective civic goods (like public education) can and should be considered a right which may properly require judicial intervention to be made equitable and just (e.g., Brown v. Board of Education), the specific hows and how much of the funding of said rights should probably not itself be considered a right, or in other words, something to be settled by judicial or constitutional edicts. To put my thoughts in one shorter sentence: let judges decide on who has what rights, but let the people decide on how to pay for them.

I have some relatively complicated theoretical reasons for this, which I made some reference to in an old post of mine; to put it at even greater length than above:

[T]he language of rights is by definition interventionary; it involves a presumption that there exists an individual who has a standing separate from whatever historical or collective laws and traditions make up their social context, thus allowing for that individual to turn around and judge that context. Consequently, rights talk is invariably judicial talk, a strategy of breaking up whatever communal arrangements exist in a given time and place in favor of an abstracted "right" or set of rights assumed, by definition, to adhere in most any individual simply by virtue of their ability to claim them....[Hence,] judicial intervention, as necessary as it may be in order to correct and establish the grounds of political action, in practice often rides very hard on serious efforts to collectively engage in such action.

But I'm not sure that makes anything clearer here. For example, an advocate for those public school systems contemplating a lawsuit might rightly ask, just what are the "historical or collective laws and traditions" that a demand for the Kansas government to own up to a variety of judicially decreed funding formulas would presumably be opposing? If the Kansas State Constitution states that "the legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools," and that "the legislature shall make suitable provision for finance of the educational interests of the state" (and it does say both), then shouldn't the funding of public education thereby be construed as a right? And shouldn't, therefore, the properly appointed interpreters of the constitution get to say whether or not funding levels are currently fulfilling that right?

Well, no, they shouldn't, because to do so puts the wrong sort of power into the wrong sort of hands. Much of this comes down to how one understands constitutions, and constitutionalism as a form of government. Suffice to say that I think that approach to constitutional interpretation which best respects democracy is that which denies that constitutions make self-government possible--by supposedly providing a form, an identity, and a means of expression to the disorganized, already individuated, self-interested and therefore competitive masses--and instead sees, as Sheldon Wolin did, a constitution as that thing which "houses" and imposes norms upon an already-existing people, who are the real site of democracy (see "Form and Norm," in Athenian Political Thought and the Reconstruction of American Democracy, p. 31).

Participation, activism, local organizing, popular sovereignty, the actions of the people and their representatives: that is the context here, a context which a turn to the courts treats as being powerless, exhausted, and pointless. And, yes, sometimes that is the case: the frequent turn by liberal polities to constitutions makes it clear that often people are convinced--rightly or wrongly--that the ordinary people can't do it on their own, that they need a codified, juridically enforced intervention to accomplish their popular aims in the face of the powers that be. But the equally frequent abuse of those interventions have corrupted them and we who employ them, I think, with the result that we are a people more comfortable turning even small, ordinary details of the daily grind of political compromising into constitutional crises, robbing us of a sense of proportion, to say nothing of robbing us of the responsibility to accept reality (in this particular case, fiscal reality!) and govern ourselves as we should, rather than trusting in constitutionally empowered judges to do it for us. To do the latter is to put oneself in a potentially permanent state of dependency, with every act of democratic or representative decision-making seen as merely tentative, a way to pass the time as one waits to see if (or, as is often the case, when) the courts will wade back into the dispute again, insisting that their decisions haven't been fully or correctly carried out (See BobChi's comment on Eagle column as an example of such.) Which, of course, they never truly can be: the nature of judicial action is to make precedents out of particulars, whereas the nature of legislation is to treat particulars as just that--particular details that will evolve and change as people do. Precedents cannot, and should not, be expected to so govern, and anyone who truly wants to be governed by such inflexible, top-down, uniform procedures has obviously lost a lot of faith in themselves and their fellow citizens.

But what if that is the case? David Watkins, a professional colleague and blogging friend of mine, commented on my post, saying: "[T]his view...romanticizes legislatures, and simply places too much of the 'work' of democracy on the shoulders of that institution. And while I more or less agree that this is probably a lousy way to do educational funding policy, I'll hardly begrudge those who pursue the means they have been provided to protect their interests. If using established but non-ideal institutional structures to defend one's interests is 'bad citizenship' good citizens are going to be rare indeed." He makes two points here: the first is that legislatures aren't capable, or at least aren't usually capable, of being the kind of responsible and responsive institutions that my democratic complaint about people turning to the courts assumes they can and should be; the second is that, given that we are, like it or not, a society that likes to talk about rights, and provides means for citizens and interest groups to turn talk about their rights into salient political action, it's rather arrogant to pronounce "bad citizen" upon those who are simply following the channels which have been dug for them. His second point is a strong one; unless I want to defend a highly elitist definition of proper democratic behavior (and I'm too populist to do that), then I really have to allow that, even if theoretically I see problems with this course of action, I really can't deny that it may well be a reasonable one.

His first point, though, isn't that strong, or so I believe. Representative institutions were designed for this kind of "work": namely, receiving citizen inputs--via elections, protests, meetings, letters, and more--and translating those inputs, through extensive compromises with one another, into workable policies, any of which can be extended, corrected, eliminated or improved in the next legislative session, or by the next set of legislators. Perhaps this sounds like an ideal world, and I recognize there is a lot I'm ignoring: superintendents and school teachers may well protest, though they speak for a publicly-funded entity, they aren't heard nearly so well as other, more concentrated, less diffuse, lobbies and special interests, and so even if the legislators really did work the way they were supposed to, they wouldn't be receiving a fair shake. But I am doubtful that the substance of such complaints is sufficient cause as to allow schools to feel fully justified in escaping the messy logic of representative democracy in the way budgets-by-lawsuits allow them to. If legislative institutions are weak in the face of various pressures, it is not (mostly, anyway) the fault of the legislators, but rather of a political system--of districting, campaigning, and fund-raising--which leaves many of them at the mercy of a complex of forces which concerned citizens are rightly often infuriated by, and which leaves political parties--the very organizations most capable of providing backbone, discipline, and reliable channels of citizen-interaction to legislators--anemic at best. In other words, I'm not romanticizing the legislative branch, I'm indicting those (including both the legislators themselves, as well as the voters) who have gone along with a system which, too often, effectively knee-caps them.

Rafe Schaefer, a former student of mine, made a similar point in a Facebook comment: after agreeing with much of my theoretical complaint, he added that "the prohibitive costs of interest group politics have left many individuals with no recourse BUT the judiciary." I can't disagree with that sentiment; it echoes what David said above about citizens making use of what is available to them, and the truth is that without strong and locally active political parties (and so long as Facebook and blogs and Twitter and all the rest which come so easily to us are essentially passive means of passing along information and commentary, rather than a tool for organizing, advertising, recruitment and raising money) perhaps the courts do make the most sense, especially for the poor or the politically disconnected. (This point can't be forgotten, as it is one of the main reasons that tort reform, as important as it may be, often hides an agenda which favors those already in positions of wealth and influence.) Rafe also called one additional point to my attention: "if our beef with the judiciary is the countermajoritarian difficulty, do we really have that problem in Kansas (and most other states) where judges are elected or appointed for terms and not for life?" I would say, yes, we do--though certainly not to the extent which the doctrine of judicial review potentially puts in the hands of the Supreme Court. The same questions I asked above in regards to legislators has to be asked to Rafe's point here: how open-ended is the appointment process? how competitive are the "retention votes" for Kansas Supreme Court justices? Who controls the appointments, anyway? So long as we have a situation where individuals only nominally subject to the demands of democratic accountability are making these decisions, then we have a functionally countermajoritarian institution taking on a set of decisions that we really shouldn't be giving to them.

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