Political Theory

Nicholas O. Stephanopoulos

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determine whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on.

My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of “those political processes ordinarily to be relied upon to protect minorities.” Second, “those political processes” refer to pluralism: the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power— one that (1) is continuous rather than binary, (2) spans all issues, (3) focuses on policy enactment, and (4) controls for group size, and (5) type. These are precisely the elements of my suggested definition.

But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.

Neomi Rao

This Article identifies a previously unexplored problem with the delegation of legislative power by focusing not on the discretion given to executive agencies, but instead on how delegations allow individual congressmen to control administration. Delegations create administrative discretion, discretion that members of Congress can influence through a variety of formal and informal mechanisms. Members have persistent incentives for delegation to agencies, because it is often easier to serve their interests through shaping administration than by passing legislation. To understand the particular problem of delegation, I introduce the concept of the "collective Congress." Collective decisionmaking is a fundamental characteristic of the legislative power. The collective Congress serves an important separation of powers principle by aligning the ambitions of legislators with the power of Congress as an institution. Although members represent distinct interests, the Constitution allows members of Congress to exercise power only collectively and specifically precludes them from exercising any type of individual or executive power. Delegation, however, provides opportunities for individual legislators to influence administration and poses a serious separation of powers concern by fracturing the collective Congress. This insight undermines the conventional view that delegations will be self-correcting because Congress will jealously guard its lawmaking power from the executive. Instead, members of Congress will often prefer to collude and to share administrative power with the executive. As a result, delegation destroys the Madisonian checks and balances against excessive delegation. This structural failure suggests a need to reconsider judicial enforcement of the nondelegation doctrine and to implement political reforms to realign Congress with its collective power.

Cristian R.C. Kelly

As Congress creates bigger and broader federal programs and administrative agencies, appropriates larger sums on their behalf, and delegates more of its legislative authority to their leaders, it takes on a commensurate responsibility to diligently oversee those agencies. Because time and resources available for congressional oversight are limited, a committee’s decision to conduct a formal oversight hearing implicates a substantial opportunity cost. At the same time, oversight hearings present committees with considerable opportunities for grandstanding and political gamesmanship. The voting public should therefore demand that congressional committees use oversight hearings efficiently, pursuing benefits like agency accountability, transparency, and democratic legitimacy, rather than the committees’ own partisan electoral advantage. However, because congressional committees are complex political institutions and because legitimate oversight benefits can often coincide with partisan political objectives, the distinction is not always easy to discern from the outside. With these nuances in mind, I argue that the outside observer can infer a committee’s underlying motivations and predict a given hearing’s likely benefits by looking for specific patterns in the way the hearing is conducted—i.e., the hearing’s “operational functions.”

Bertrall L. Ross II

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself. Even in cases where the state produces adequate evidence to support its action, the Court sometimes invalidates the law because it does not believe the state’s facts. In these cases, the Court treats the state like a witness in its own trial, subjecting the state’s record and the conclusions drawn from it to rigorous cross-examination and second-guessing.

In this “credibility-questioning” review of the record, the Court appears to be animated by an implicit judgment about the operation of the political process. When Justices consider the political process to have functioned properly, they treat the state as a good faith actor and merely check the adequacy of its evidence in the record. But when Justices suspect that the democratic process has malfunctioned because opponents of the law were too politically weak or indifferent to challenge distortions in the record, they treat the state as a witness, suspecting bias in its factual determinations supporting the law.

In this Article, I both support and critique this new form of review. Contrary to conventional wisdom, I argue courts should engage in credibility-questioning review of the record when the political process has malfunctioned. Public choice and pluralist defect theory imply that the record supporting a law is more likely to be distorted in contexts of democratic malfunction. But for reasons of institutional legitimacy and separation of powers, I argue courts should limit credibility-questioning review to contexts where there is actual proof of democratic malfunction.

Fred O. Smith, Jr.
Voters in twenty-four states may propose and enact legislation without any involvement from representative branches of government. In recent decades, voters have used popular lawmaking to eliminate groups’ liberty and property interests on topics such as marriage, education, public benefits, and taxes. This Article contends that these deprivations undermine principles historically associated with procedural due process, thus raising serious questions about the constitutionality of initiatives that eliminate groups’ protected interests.
The Fourteenth Amendment’s Due Process Clause embodies principles of fairness that include deliberation, dignity, and equality. The historical salience of these principles is evidenced in colonial charters and state constitutions, the Federalist Papers, antebellum cases interpreting state due process clauses, antebellum cases governing popular lawmaking, and legislative debates leading up to the Fourteenth Amendment’s ratification. These principles should inform the doctrine’s approach to defining procedural fairness.
When deprivation of liberty or property is at stake, the republican system of representative government protects these principles of fairness better than most contemporary plebiscites. Indeed, in a series of vastly understudied cases in the decade leading up to the Fourteenth Amendment’s ratification, at least eight state courts expressed normative doubts about popular lawmaking. While these cases were not premised on due process clauses, these courts nonetheless invoked principles associated with due process and republicanism when questioning popular lawmaking, providing some evidence of the dominant understanding of these terms during that era.
What is more, the requirement of due process of law, at a minimum, prohibits deprivations of liberty or property that violate other constitutional provisions. There is an enduring debate about whether the initiative process violates the non-justiciable Republican Form Clause. This Article seeks in part to inform that debate. And if, in fact, the initiative process violates the nonjusticiable Republican Form Clause, initiatives that deprive individuals of liberty or property violate the justiciable Due Process Clause.
Christopher Asta

The Speech or Debate Clause of the United States Constitution protects legislators from being questioned at trial about their legislative acts. This protection shields legislators from being prosecuted or sued based on those acts and also sometimes protects them from having to testify about those acts at trial. While this protection is important in certain circumstances to safeguard the independence and proper functioning of the legislature, it can also be problematic when plaintiffs need to prove an invidious legislative purpose to challenge a law. This is especially the case in the redistricting context, where the standards to analyze both racial and partisan gerrymandering claims require information regarding legislative intent. Yet a close look into judicial interpretations of the Speech or Debate Clause, and the legislative privilege that stems from it, finds a conflicting set of opinions regarding when such protections should and should not apply. This confusion has made it difficult for courts to address legislative privilege questions properly and may lead courts to protect and uphold redistricting legislation more than is warranted. This Note surveys Supreme Court and  lower-court Speech or  Debate Clause opinions to develop a straightforward and consistent framework for addressing all Speech or Debate Clause disputes and then applies that framework to the questions that arise during redistricting litigation.

Jeremy Waldron, Lewis A. Kornhauser, Hon. Stephen Breyer, T.M. Scanlon, Rebecca L. Brown, Liam Murphy, Robert B. Silvers, Thomas Nagel

Last year, the NYU community lost an intellectual giant in Professor Ronald Dworkin. The school and the Law Review joined together to honor Professor Dworkin’s writings, ideas, and of course, his legendary colloquia. Academics, philosophers, and judges gathered to pay tribute. In the pages that follow, we proudly publish written versions of those tributes.1 The ceremony closed with a short video clip of one of Professor Dworkin’s last speeches, titled Einstein’s Worship. His words provide a fitting introduction:

"We emphasize—we should emphasize—our responsibility, a responsibility shared by theists and atheists alike, a responsibility that we have in virtue of our humanity to think about these issues, to reject the skeptical conclusion that it’s just a matter of what we think and therefore we don’t have to think. We need to test our convictions. Our convictions must be coherent. They must be authentic; we must come to feel them as our convictions. But when they survive that test of responsibility, they’ve also survived any philosophical challenge that can be made. In that case, you burnish your convictions, you test your convictions, and what you then believe, you better believe it. That’s what I have to say about the meaning of life. Tomorrow: the universe."

Joy Milligan

Why does the race of judges matter? This Note argues that racial diversity in the judiciary improves legal decisions about political morality. Judges play a substantial role in regulating our political morality; at the same time, race and ethnicity influence public views on such issues. In cases that involve difficult legal questions of political morality, judges should seriously consider all moral conceptions as potential answers. Racial and ethnic diversity is likely to improve the  judiciary's institutional capacity for openness to alternative views—not because judges of any given race will "represent" a monolithic viewpoint, but because of the likelihood that judges of a particular race or ethnicity will be better positioned to understand and take seriously views held within their own racial or ethnic communities. Judicial dialogue, taking place within appellate panels and across courts, serves to diffuse alternative viewpoints more broadly. Greater judicial willingness to consider disparate moral views should ultimately result in better decisions regarding political morality. Specifically, the judiciary may fashion new compromises to resolve political-moral dilemmas, judges and society may better understand the contours of such dilemmas, and the public may even arrive at new conclusions regarding basic questions of political morality.

Cass R. Sunstein

How can groups elicit and aggregate the information held by their individual members? There are three possibilities. Groups might use the statistical mean of individual judgments; they might encourage deliberation; or they might use information markets. In both private and public institutions, deliberation is the standard way of proceeding; but for two reasons, deliberating groups often fail to make good decisions. First, the statements and acts of some group members convey relevant information, and that information often leads other people not to disclose what they know. Second, social pressures, imposed by some group members, often lead other group members to silence themselves because of fear of disapproval and associated harms. As a result, deliberation often produces a series of unfortunate results: the amplification of errors, hidden profiles, cascade effects, and group polarization. A variety of steps can be taken to ensure that deliberating groups obtain the information held by their members; restructuring private incentives, in a way that increases disclosure, is the place to start. Information markets have substantial advantages over group deliberation; such markets count among the most intriguing institutional innovations of the last quarter-century and should be used far more frequently than they now are. One advantage of information markets is that they tend to correct, rather than to amplify, the effects of individual errors. Another advantage is that they create powerful incentives to disclose, rather than to conceal, privately held information. Information markets thus provide the basis for a Hayekian critique of many current celebrations of political deliberation. They also provide a valuable heuristic for understanding how to make deliberation work better. These points bear on the discussion of normative issues, in which deliberation might also fail to improve group thinking, and in which identifiable reforms could produce better outcomes. Applications include the behavior of juries, multimember judicial panels, administrative agencies, and congressional committees; analogies, also involving information aggregation, include open source software, Internet "wikis," and weblogs.