Democracy Briefings

Democracy's Futures Fall 2022


Democracy Briefing 1: Building a Pandemic-Resilient Democracy

by John Sullivan Baker, CDI Student Fellow; Oct. 4, 2022

On September 15, 2022, an interdisciplinary group of faculty and students convened for the semester’s first installment of Democracy’s Futures, a seminar series exploring how we can strengthen, expand, and reinvigorate democracy. The session, which examined the relationship between democracy and the COVID-19 pandemic, featured two distinguished speakers: Danielle Allen, James Bryant Conant University Professor at Harvard University, and John Witt, Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. This briefing summarizes their insights.      

Democracy’s Futures is organized by the Columbia University Constitutional Democracy Initiative. We invite you to register for upcoming Democracy’s Futures events and learn more about the Initiative’s ongoing projects.

The devastation of COVID-19 prompts the question of how democracies can more effectively respond to infectious disease. The session began by examining the lost history of pandemics. Before antibiotics and modern healthcare, epidemics were pervasive, and Americans developed governance structures to safeguard society’s health. Over the century prior to COVID-19, however, infectious disease faded from public consciousness, and we lost much of our pandemic resilience. The goal is to build capacity to respond to pandemics by emphasizing the public good and building more flexible and engaged democratic systems.

During the conversation, Professor Witt described the many ways state and local governments invoked their police power to regulate public health in the 19th and early 20th centuries. Officials banned livestock from city streets, conducted home inspections, required mass vaccination, and implemented numerous other interventions. Authorities also ran messaging campaigns that encouraged healthy and sanitary practices by appealing to citizens’ sense of social responsibility.

While courts gave state and local officials wide leeway to exercise the police power, they sometimes struck down public health measures as beyond the pale of government authority. For example, courts prevented the transfer of cholera patients from quarantine ships to land (Seguine v. Schultz), stopped local authorities in Georgia from seizing property for a smallpox hospital (Markham v. Brown), and struck down a discriminatory quarantine targeting San Francisco’s Chinatown (Jew Ho v. Williamson). This “jurisprudence of hygiene” culminated with Jacobson v. Massachusetts, a landmark U.S. Supreme Court decision upholding compulsory vaccination. In his majority opinion, Justice John Marshall Harlan wrote that a community must be able to act collectively to advance “general comfort, health, and prosperity.”

But in the 20th century, Professor Witt argued, the United States largely declared victory over infectious disease. Even as the federal government’s footprint grew, our capacity to confront epidemics shrank. And when the COVID-19 pandemic struck, we were tragically unprepared.

Professor Allen illustrated a roadmap for building a pandemic-resilient democracy. First, she argued, democracies can foster mutual commitment and create a robust social contract by elevating public goods and shifting away from overly market-centric approaches. Such a strategy would foster inclusion and democratic participation by seeing and hearing those who lack the private resources to protect themselves in a crisis.

Democracies can operationalize this new social contract, Professor Allen explained, by developing governance structures that attend to people’s needs in local contexts and harmonize policy solutions across jurisdictional levels. Too often, our federalist system, which should facilitate flexible solutions to meet communities’ unique needs, instead undermines effective coordination. For example, during the COVID-19 pandemic, school reopenings were hampered by jurisdictional confusion at all levels, and many education policymakers neglected to engage with the ground-level needs of teachers and families.

To achieve Professor Allen’s vision, we need governance structures that are nimble, flexible, and respond effectively to varied challenges. This means policymakers should better collaborate across jurisdictional and partisan lines, while engaging deeply with individuals on the ground to understand context-specific needs and perspectives. If democracies can enhance collaboration while re-centering the public good, American society will be better-prepared to weather future pandemics.

 

Further Reading:

 

 

Democracy Briefing 2: The Democratic Possibilities of the European Union

by John Sullivan Baker, CDI Student Fellow

On September 29, 2022, an interdisciplinary group of faculty and students convened for the semester’s second installment of Democracy’s Futures, a seminar series exploring how we can strengthen, expand, and reinvigorate democracy. The session, which critically examined the relationship between the European Union and democracy, featured two distinguished speakers: Gráinne de Búrca, Florence Ellinwood Allen Professor of Law at the New York University School of Law, and Charles Sabel, Maurice T. Moore Professor of Law at Columbia Law School. This briefing summarizes their insights.      

Democracy’s Futures is organized by the Columbia University Constitutional Democracy Initiative. We invite you to register for upcoming Democracy’s Futures events and learn more about the Initiative’s ongoing projects.

            Is the European Union a democracy? What should democratic governance look like in a globalized world? Do we need to re-think our definition of democracy altogether? Participants wrestled with these crucial questions in a session that explored both the promise and peril of the EU’s supernational system of governance. Professor Gráinne de Búrca made the case that the EU both exemplifies and challenges democracy, and Professor Charles Sabel theorized that EU provides an innovative model for globalized governance that doesn’t depend on a single set of unified rules or a single administrator.

As a deeply-integrated political organization, the EU contains many robustly-democratic elements. It clearly articulates its goals and values in terms of human rights, democracy, and the rule of law. Members are directly elected to the European Parliament from across the EU, and the Council of the European Union, which co-legislates with the Parliament, has members who are either elected or selected from the EU’s democratic member states. Although the European Commission, the EU’s executive body, is not directly elected, its members are transparently chosen and accountable to the Parliament. And the EU’s judiciary serves as a check on the other governmental branches as it helps uphold the Charter of Fundamental Rights.

Although the EU’s institutions mirror those of a national democracy, Professor de Búrca highlighted several ways in which the EU may not be fully democratic. For example, the Union may not be responsive enough to the electorate. Only the European Parliament, whose power is diluted by complex power-sharing arrangements between institutions, is directly elected. This makes it more difficult for voters to effect change at the ballot box.

Further, the EU may tend to undermine democracy within its member states. Because its laws take precedence over all domestic law, preempting even national constitutions, the EU limits national sovereignty. The EU also may shift power from national legislatures to executives, as it provides a forum (especially in times of crisis) for heads of state to reach decisions by conferring with each other, rather than their respective parliaments. Finally, the EU has been criticized by those who argue that the rules of its internal market and monetary union undermine national welfare states by restricting domestic economic policy.

While acknowledging the limitations noted by Professor de Búrca, Professor Sabel argued that the EU is a transformative example of a modern “non-sovereign” that should lead us to re-think what democracy means in a globalized world. The EU lacks a key element of national sovereign democracy: an authoritative final decider. There is no legislator, executive, or judge whose decision can’t, in some way, be nullified or challenged by a member state. Nonetheless, the EU is a potent institution that has regularly intervened in the internal affairs of its member states to prevent democratic backsliding and address economic emergencies.

Crucially, when a novel or unforeseen crisis emerges, the scope of the EU’s power often must be expanded, as the Union is only authorized to intervene over a limited set of domains. Professor Sabel argued that, even though the EU lacks the centralized crisis-management infrastructure of federal states like the United States and Germany, it addresses crises at least as well as centralized states. While centralization facilitates decisive action, it can also diminish access to the information needed to effectively guide that action. In the EU, by contrast, decision-making requires greater consensus-building and deeper multilateral engagement with open questions, which leads to better-informed policy choices. 

The deliberative nature of the EU is crucial to its global status as a regulatory superpower. While the massive size of the EU market is an important factor, Professor Sabel argued that the EU’s influence primarily stems from the quality of its rules. EU regulations are highly effective because the Union’s decision-making process incorporates a diverse range of member state needs, considers myriad international challenges, and responds to evolving circumstances on the ground throughout the Union.

In a globalized world where decision-making is multipolar and no single set of homogeneous rules govern, the EU model provides a promising avenue for international problem-solving that respects national differences.


Further Reading:

 

 

Democracy Briefing 3: The State of Electoral Democracy – Partisan Fragmentation, Strained Localism, and Latent Congressional Power

by John Sullivan Baker, CDI Student Fellow

On October 13, 2022, an interdisciplinary group of faculty and students convened for the semester’s second installment of Democracy’s Futures, a seminar series exploring how we can strengthen, expand, and reinvigorate democracy. The session, which focused on elections and threats to democracy, featured three distinguished speakers: Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School; Richard Pildes, Sudler Family Professor of Constitutional Law at the New York University School of Law; and Franita Tolson, George T. and Harriet E. Pfleger Chair in Law at the University of Southern California Gould School of Law. This briefing summarizes their insights.      

Democracy’s Futures is organized by the Columbia University Constitutional Democracy Initiative. We invite you to register for upcoming Democracy’s Futures events and learn more about the Initiative’s ongoing projects.

Do elections ensure effective governance and democratic responsiveness? How should a democracy govern itself? How do we make sure elections happen in an impartial and fair manner? Three leading election law scholars grappled with these urgent questions in a wide-ranging conversation. Professor Richard Pildes described a trend of democratic fragmentation; Professor Richard Briffault highlighted the vulnerabilities of localized election administration; and Professor Franita Tolson expounded an expansive view of Congressional authority over elections.

Professor Pildes began the conversation with an international comparison, describing how many European political landscapes have shifted from a “two and a half party system,” where power was concentrated largely in the hands of a center-left and a center-right party, to “a six-party system,” where power is diffused between several different factions, many of which are insurgent parties or parties whose ideology is difficult to characterize. In the United States, our first-past-the-post system means that, while Republicans and Democrats remain dominant, the two parties have fractured internally.

Today’s polarized media environment enables what Professor Pildes refers to as “free agent politicians.” Social media and partisan television enable even freshman politicians to build national constituencies and raise massive amounts of money with little help from national political parties. This means junior members of Congress have an unprecedented amount of influence and independence—and that party leaders struggle to govern their blocs, let alone the country.

Fragmentation is, in part, a response to citizens’ perception that democratic governments are failing to effectively deliver on important issues. At the same time, however, fragmentation makes it more difficult for elected officials to govern, further eroding the public’s trust in democracy. If this cycle of fragmentation continues, politics will remain highly turbulent, those in power will be constantly undermined, and democracy will struggle to deliver.

Transitioning to a ground-level perspective, Professor Briffault highlighted current threats to the integrity of local election administration. The American electoral system is run almost entirely at the local level, depending on approximately 8,000 distinct county and municipal systems. Local authorities register voters, check voter ID, maintain the security of election machinery, and perform countless other crucial tasks. In some ways, the system works well. For example, in 2020, election officials demonstrated resilience and creativity in administering an election with record-breaking turnout amid the Covid-19 pandemic.

However, election denialism, which became a potent destabilizing force in 2020, threatens our local election system. First, poll workers and other local administrators have faced an onslaught of threats, including hate mail, menacing phone calls, and social media attacks. They also have experienced outright physical assaults and vandalism. In recent interviews, poll workers have consistently expressed a palpable fear of violence, which drives increased retirement rates and hinders recruiting efforts.

Second, some state governments have cracked down on local poll workers in an effort to limit their discretion and authority. For example, states have denied them the power to send absentee ballot applications without voter requests, limited their ability to assist voters, and imposed onerous reporting obligations throughout the voting process. Some states have simultaneously empowered poll watchers, who ostensibly ensure transparency but often intimidate voters and poll workers.

The final threat, Professor Briffault argued, is a political challenge; the Republican party has elevated election deniers, who are running up and down the ballot, particularly in crucial swing states like Nevada and Arizona. These individuals could undermine free and fair elections in a variety of ways, including by rejecting ballots with minor errors, allowing or instigating breaches of election security, or unlawfully challenging registered voters.

Due to intense partisanship and the highly decentralized nature of the electoral system, these challenges will be difficult to address. However, Professor Briffault called on Congress to pass legislation to protect poll workers while remaining attentive to their unique needs—and conscious of their integral role in our democracy.

Emphasizing our national legislature’s role as a guarantor of democracy, Professor Tolson argued that Congress has greater power over elections than courts and commentators typically acknowledge. When it comes to congressional regulation of elections, the Fourteenth and Fifteenth Amendments receive disproportionate attention, as courts often adjudicate rights under the amendments. And the Supreme Court of Chief Justice John Roberts has consistently articulated a vision of state supremacy over election administration—at the expense of congressional power.

 By contrast, Professor Tolson emphasized constitutional provisions—which she refers to collectively as the Constitution of Political Structure—that directly delegate power to Congress, rather than the courts or the states. These include Article VI, Section 4 (the Guarantee Clause), guaranteeing to each state a “Republican Form of Government”; Section 2 of the Fourteenth Amendment, a frequently overlooked provision that reduces the size of a state’s House of Representatives delegation if the state denies or abridges voting rights; Article I, Section 4, Clause 1 (the Elections Clause), allowing Congress to make or alter state regulations that govern federal elections; and Article I, Section 5, granting Congress authority to judge the qualifications of its members.

During Reconstruction, a Republican-dominated Congress asserted its power over elections by embracing and expanding the Constitution of Political Structure. The Civil Rights Act of 1866 and the Reconstruction amendments brought Black men into the national political community and empowered Congress to reshape and reconstitute the governments of the recently-seceded Southern states.

Professor Tolson argued that, despite this revolutionary expansion of democracy, Congress—which was preoccupied by the political viability of reforms—didn’t go far enough. Republicans removed an anti-discrimination provision from the Civil Rights Act of 1866 due to concerns that it could be used to enforce voting rights. And the Fourteenth Amendment’s framers did not include an affirmative right to vote, opting instead for the complex representation-reduction provision of Section 2. Even the Fifteenth Amendment, which explicitly prohibited vote denial based on “race, color, or previous condition of servitude,” left out half the nation; women would not gain suffrage until the Nineteenth Amendment was ratified in 1920. Having described these shortcomings of Reconstruction, Professor Tolson ended with a question: can full democracy be achieved if we focus on what is politically viable, rather than what is radically necessary?

 

Further Reading:

 

 

Democracy Briefing 4: Supreme Threats – The Courts and Democracy

by John Sullivan Baker, CDI Student Fellow

On October 27, 2022, an interdisciplinary group of faculty and students convened for the semester’s fourth installment of Democracy’s Futures, a seminar series exploring how we can strengthen, expand, and reinvigorate democracy. The session, which focused on the role of federal courts, featured two distinguished speakers: Ryan Doerfler, Professor of Law at Harvard Law School, and Jamal Greene, Dwight Professor of Law at Columbia Law School. This briefing summarizes their insights.      

Democracy’s Futures is organized by the Columbia University Constitutional Democracy Initiative. We invite you to register for upcoming Democracy’s Futures events and learn more about the Initiative’s ongoing projects.

In this provocative discussion, Prof. Ryan Doerfler and Prof. Jamal Greene questioned ingrained assumptions about the foundations of American government. Does the Constitution truly embody “we the people”? Does the Supreme Court, as currently structured, strengthen or undermine democracy? Prof. Doerfler argued that the Supreme Court must be disempowered because it acts as an unaccountable super-legislature, while Prof. Greene called for us to question the democratic legitimacy of the Constitution itself.

Prof. Doerfler invited participants to reconsider the role of the federal judiciary within the American constitutional order.  He began by arguing that the Court is an inherently illegitimate institution, regardless of its partisan lean at any one moment, because the Justices make ideological rulings but lack any democratic accountability.

Supreme Court decisions are unavoidably ideological because the questions the justices must resolve lack narrowly legal answers; they typically involve complex policy considerations and values-based judgements. And although Supreme Court justices make the same ideological judgements that politicians make, they lack democratic accountability because they are unelected, have life tenure, and aren’t bound to a code of ethics. As a result, the Court functions as a super-legislature that shapes policy —often contrary to voters’ democratic will.

If the Supreme Court is structurally flawed, what should reform look like? Often, reform discussions center on term limits or mechanisms to ensure ideological balance. However, Prof. Doerfler argued that these reforms would make the Court seem less partisan or ideological, but they wouldn’t alter the institutional power imbalances that permit the Court to act as a super-legislature at the expense of the peoples’ elected representatives. Similarly, court packing could change the outcome of individual cases but would maintain the illegitimate system that creates those outcomes.

Instead, Prof. Doerfler advocated for disempowering reforms, which would strip the court of some of its authority and reallocate it to the more democratically accountable branches, particularly Congress. One such reform is jurisdiction stripping, which would remove the Court’s ability to hear certain types of cases. A super-majority requirement would also limit the Court’s authority. For example, a decision in which the Supreme Court substitutes its view for that of Congress could require six or seven out of nine justices to agree, rather than a simple majority of five.

Professor Greene also identified institutional flaws that go beyond the current Court, questioning the legitimacy of the judiciary’s foundation: the Constitution. Almost always, judicial decision making is rooted in the premise that the Constitution is legitimate. If it weren't legitimate, why would we even bother to interpret it? Adhering to this thinking, conservatives typically embrace originalism, which dictates that judges should apply the text of the Constitution as it was understood by the public at the time of ratification, while liberal judges may subscribe to living constitutionalism, which holds that the meaning of the Constitution changes as society’s values evolve.

But Professor Greene posed a provocative question: why should we care about understanding the Constitution as currently designed? The Constitution cannot plausibly be understood as the will of “we the people,” because it was initially drafted and ratified by a tiny portion of the American public at a time when only some white men held political rights. Even the vaunted Fourteenth Amendment of 1868, which applied due process constraints to state action and established equal protection rights, was passed by a Congress comprised entirely of white men, who were elected almost entirely by white men.

Because the Constitution was not the result of fully-democratic processes, it is not very useful for telling us what decisions are committed to the people through their elected representatives—rather than to courts. Therefore, Prof. Greene counseled judges to exercise humility. Their decision-making should be tightly fact-bound, and they should defer heavily to institutions that reflect and respond to the will of the public. Foremost among these institutions is Congress which, though flawed, best embodies American ideals of popular democracy.

 

Further Reading:

  • Ryan Doerfler and Samuel Moyn, “Democratizing the Supreme Court”
  • Jamal Greene, “The Wages of Being Sheep” [draft of Foreword], 6 Am. Const. Soc’y Sup. Ct. Rev. (2022 Forthcoming).

Democracy's Futures Fall 2022