The Senator from Harvard has no conception of the proper judicial role other than that it should favor litigants whose political stances she supports.
Senator Kamala Harris, a leading Democratic candidate for President, recently suggested that all legislators should be forced to look at autopsy photographs of children killed by guns before voting on gun control laws. This comment encapsulates three elements of the progressive populism that seems to be enjoying a revival these days.
First, it captures its bossiness. Harris wants to impose a mandate even on representatives. In a democracy, representatives should have the discretion to formulate policy by choosing what they view as the most relevant evidence. But this requirement would force them to deliberate as progressives see fit.
Second, it reflects the progressive idea that all we need is a simple law to obtain a given policy result—in this case no dead children. But often laws are ineffective because people can get around them, and the government cannot enforce them against the people who most need to be regulated. That is one argument against the effectiveness of many gun control laws, for instance. More complicated legal responses—in this case, changes to our mental health system—or nudges for cultural change may be more effective.
Third and perhaps most importantly, this comment dramatically captures the progressive populist preference for the seen over the unseen. These children in the photographs are the very visible victims of people wielding guns. But by imposing restrictions on law abiding citizens, gun control laws may increase crime and violence by reducing criminals’ fear that they will be meet with lawful force. Over a century ago Frederic Bastiat wrote a beautiful essay, “What is Seen and What is Not Seen,” arguing that what separated a wise political economist (and by implication a wise stateswoman) from a foolish one was the ability to consider the unseen consequences of laws.
To be clear, I am not against all forms of gun control, just many of the arguments and slogans of progressive populism in their favor. That form of policy making is not just limited to arguments for gun control. Medicare for All is another slogan that shares many of the same defects. First, it is based on the idea that a legal quick fix is what we need in health care, although it is not even clear that access to insurance substantially improves health outcomes. Second, it focuses on the seen effects—giving health insurance for all at no direct cost to them—while leaving out all the unseen ones. For example, it fails to consider what government control of the pricing for all or most medical services will do to medical innovation.
Amusingly, Harris made a mistake in applying the principles for selling progressive populism in her own roll-out of Medicare for All. She said her version would eliminate private insurance. That is indeed a very visible effect, readily seen by the millions who like their insurance plans. But running on the platform “If you like your health insurance, you can’t keep it” does not seem like a sure winner. The more sophisticated version of progressive populism instead creates a “public option,” permitting anyone to sign up for Medicare. The unseen effects will likely be similar for many people as the existence of the free public option will result in many companies dropping their plans in the future, but that consequence will not be immediately visible to voters. Expect better-calculating populist progressives, like Elizabeth Warren, to avoid similar mistakes.