Ironically, it was efforts to save the ACA that produced Judge O'Connor's conclusion that Obamacare could not stand.
The question posed in Joseph Postell’s Liberty Forum essay—“Can the American people be trusted to govern themselves?”—sounds strange, at least at first, to a student of empirical political science, especially of comparative politics. It sounds strange because it suggests that America’s experiment in self-government might have failed or might be failing or faltering in some important respect. But self-government or democracy seems to be doing fine in the United States and in a number of peer societies.
It seems to be doing fine in at least two senses: Democracy in these countries has survived and surpassed authoritarian and totalitarian competitors, and self-governance appears robust and sustainable, as opposed to precarious or headed toward systemic crisis or breakdown. This response to Postell develops these points, and then considers whether self-government should instead be measured against the more ideal standard that he eloquently discusses.
Self-government in America, which I will treat, as he does, as synonymous with democracy, has thrived despite many direct and indirect challenges from authoritarian and totalitarian regimes. In alliance with combinations of democratic counterparts like the United Kingdom, the Low Countries, France, and later Germany and Japan, it has survived these challenges and surpassed, even superseded, these regimes in most ways and regions.
Combinations of these democracies defeated Germany in the First World War, and played crucial roles in defeating Germany, Japan, and Italy in the Second World War. Success in war was matched in the Cold War and other contexts by effective diplomacy and alliance-building. In all these conflicts, America massively materially out-produced its non-democratic adversaries. By the end of the 20th century, America stood at the head of a loose team of democracies that dominated international politics, diplomacy, trade and economics and, for want of a better term, prestige.
While non-democratic regime challengers still exist—most obviously China and diverse non-democratic regimes in the Middle East and South Asia—America and its core allies are widely recognized as the most successful and enviable societies in history. Consider one measure: Some people line up to earn wages in Saudi Arabia and Dubai; many more line up to become Americans—that is, to enter lotteries, wait years, pay kings’ ransoms to sketchy smugglers, board leaky rafts, even endure multiple meetings with U.S. Immigration and Customs Enforcement. The draw for these people obviously includes factors other than self-government. But democracy is one major draw.
And self-government in America, and its peer societies, appears robust. In these countries, elections are regular, parties form pretty freely and operate competitively, and media and debate are generally free-wheeling. Polarization may be increasing in the United States and some Western European countries, but remains far below the levels that threatened regime stability in places like interwar Spain, Germany, France, and Italy. People have legitimate concerns about arrogant officials (think Jean-Claude Juncker), the creeping power of administrative agencies and bureaucrats, and hate-speech restrictions that squelch debate. But the scope of democratic governance remains broad by historical standards.
Some worry that Donald Trump is a unique menace to democracy. But it is unclear that he has an anti-democratic agenda. What we do know so far is that he produces more light than heat, and is hemmed in by legislative and judicial majorities that seem protective of the constitutional order—protections that his early judicial nominations seem likely to reinforce, not weaken.
To see a crisis in self-government, I have to squint pretty hard. As of mid-2017, America recently completed national elections; no one doubts coming elections will be held on schedule; the mass media offer a greater diversity of viewpoints than has been the case in many decades; political liberties are robust; defense of them is vocal (as seen in widespread criticism of intolerance on college campuses); and the majority party and the opposition party are each healthy and wealthy, if not obviously wise.
But maybe wisdom is the issue. Am I using the wrong yardstick? Postell identifies a tension in the Founders’ understanding, between hopes that legislators would be motivated to pursue the common good or civic virtue, and concerns that they would simply reflect America’s clashing interests and views. He cites James Madison on this, and also John C. Calhoun’s assessment that factions adept at horse-trading would form majority coalitions that, rather than achieving some public good, would simply optimize the pursuit of particularistic interests.
We can think about this concern in two ways. First, do we see officeholders and citizens pursuing some common interest? Second, do we see much wisdom in whatever goals these actors are pursuing?
The concern that majorities may simply be aggregations of particularistic interests and values must seem awfully valid today. The federal budget, that most central expression of political priorities, seems little more than a log-rolled accumulation of narrow interests. Something similar can be said of major laws concerning healthcare financing, taxes, environmental protection, education, defense spending, and much more.
Someone above my pay grade will have to decipher whether legislation in these areas is better understood as 1) fundamentally a pursuit of the common good that becomes encrusted with all sorts of narrow demands; or 2) fundamentally a pursuit of narrow interests that has a fig leaf of “common good” tacked on. In either case, the pursuit of narrow goals seems to be as pervasive now as at any point in history. The question is whether it hasn’t been like this at all points in history. Public choice theory leads us to expect the pursuit of narrow interests to be the norm.
Sometimes people seek perfectly narrow goals through politics: a speed bump in front of the yard where their children play, a disability check, or a job from a patronage machine. At other times, they pursue collective goals because only a piece of a larger pie is possible: a neighborhood park so that residents can access a green space; a subsidized stadium to draw foot traffic to the area near the restauranteur’s establishment; or an entitlement program so one’s particular healthcare costs are covered.
Every so often, everyone’s interests or values overlap so much that it is difficult to distinguish between narrow and collective goals. This most obviously happens during major wars. Difficult to distinguish but not impossible: even during major wars, citizens will jockey for favorable military contracts, seek personal exemptions from rationing, wrangle higher wages from employers in essential industries, or will try to avoid the most dangerous duties.
If this is how democratic politics works, then coalitions are likely to add and shed members as players negotiate and values and interests mutate over time, with policy outcomes likely to be much more politically than fiscally efficient, and with little certainty about what policy features are possible. Amid the uncertainty, actors may opportunistically shift tactics and policy preferences. The factions’ skill and luck at winning this disorderly contest will probably ebb and flow.
Such a scenario obviously sounds familiar. What is not obvious at all is how these characteristics would doom or even imperil an experiment in self-government. It is not clear why they cannot be sustained indefinitely. If they do characterize America’s political process—which some will dispute—then our democracy has tolerated them without dangerous popular disillusionment with the regime, unsustainable fiscal burdens, or severe abuses of power. Institutional design may help—for example, by better defending core political liberties, making it more difficult to legislate narrowly, or keeping more decisionmaking power local. It is no coincidence that the Founders celebrated the diversity of factions required to construct American coalitions and crafted institutions that harnessed competing ambitions to the cause of regime stability.
If Americans are not more narrowly self-interested or more ambitious these days than in the past—if they were never really virtuous in Postell’s sense—do they seem less wise? If so, does that matter? Americans today are famously ignorant about many minor (and major) details of government and public policy. But it is not clear that this is anything new. Are more Americans responsive to demagoguery now than they were during the New Deal? “Angrier” than at many points in U.S. history? More mistaken about the effects of protectionism than they were earlier? More tribal in their political reactions?
All that seems unlikely. Maybe a special Providence still looks after children, fools, and the United States. But ignorant and foolish publics have nevertheless sustained self-government in Western Europe, Japan, and the South Pacific for many decades, in democracies that appear as robust as ever. I guess we can be trusted to govern ourselves, hard as that is to believe when you read the news.
 On democratic performance in wars, see David Lake, “Powerful Pacifists: Democratic States and War,” American Political Science Review 86:1 (March 1992), 24-37; and also the symposium revisiting Lake’s claim in International Security 28:1 (Summer 2003).