Tuesday, June 30, 2009

Pope on the Role of Direct Popular Power in the American Constitutional Order

Many legal scholars have been using their summers to update their SSRN pages, posting earlier scholarship. One recent posting is Republican Moments: the Role of Direct Popular Power in the American Constitutional Order by James Gray Pope, Rutgers Law School, Newark. It appeared in the University of Pennsylvania Law Review (1990). (On republicanism, an important intervention in the late 20th century debate came from Joyce Appleby.) Here's Pope's abstract:
Republican moments occur during periods when large numbers of normally quiescent citizens enter the public arena to struggle over long-term issues of principle. Constituencies that are under-represented in interest-group bargaining use mass protest and other forms of direct popular power to place their concerns on the public agenda. Aroused citizens disrupt cozy relationships among politicians, administrators, and interest group lobbyists. Examples include the Revolutionary era, the Jacksonian period, the Civil War and Reconstruction, the Populist era, the New Deal, and the 1960s. Most of the great rights we celebrate today were products of the unruly and passionate politics of republican moments. The Constitution, of course, erects a system of representative - not direct - democracy. Its most effective proponents sought to temper special interest politics with deliberations among an elite of virtuous representatives, not with pulses of direct popular power. The Bill of Rights, however, added a potentially subversive supplement to the representative scheme. Read in historical context, the First Amendment carves out the constitutional space for direct popular power. In the political theory and practice of the founding generation, the right of the people peaceably to assemble encompassed not only the right to meet, but also to exercise extra-institutional forms of power, ranging from nonviolent rallies and boycotts to the displacement of representative government by popular assemblies. Direct power was seen as a necessary corrective to the natural tendency of government to degenerate into corruption and tyranny. Here, as elsewhere, the framers deliberately built a conflict into the constitutional scheme, this one between representative government and direct popular power. The theory of republican moments has two major implications for legal doctrine. First, it provides arguments for expanding the protection of direct popular power under the first amendment. Understanding the long-run functions of direct power may help to forge the kind of civic courage that can sustain a commitment to free speech and assembly in the midst of popular tumult. Second, the theory suggests that courts and administrative agencies should give a broad construction to the statutory and constitutional products of republican moments. For brief periods of time, at a considerable cost to business-as-normal, direct popular power offsets the worst flaws of interest group bargaining. These times should be seen as precious - albeit unsettling - moments of effective democracy. When the level of participation subsides, courts and administrative agencies should serve as agents of the republican moment, preserving the thrust of republican laws against the relative lethargy and corruption of interest group bargaining. Failure to do so can only reflect, as Frederick Douglass lamented when the Supreme Court invalidated the Civil Rights Act of 1875, a failure of historical memory.