Elite Constraints on Democracy Encourage Populism

Over the weekend the New York Times published another in its stream of op-eds about how democracy is endangered by President Trump in particular and populism in general. I am not a great fan of either the President or of populism, but these articles share a blind spot. Democracy has been endangered and populism enlivened by the relentless rise of institutions which elites use to insulate issues from democratic contestation without ever gaining the substantial constitutional consensus needed to put these issues off limits. In other words, populism is in large measure a reaction to extra-constitutional constraints on democracy.

The idea that elites are limiting democracy worldwide through maintaining relatively unconstrained judicial power is the subject of Ran Hirschl’s  Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Despite some weakening of that trend in the United States because of the rise of originalism, fear of juristocracy was still instrumental to Trump’s victory. In the year before the election the Supreme Court discovered a previously unknown right to same sex marriage in the Constitution, ending state by state democratic debate over this social issue. Of even more concern for the members of religious groups who went on to support Donald Trump, President Obama’s Solicitor General implied that the government might withdraw support, including tax exemptions, from private institutions that did not go along with this new regime.

Enforced multiculturalism, including affirmative action at governmental educational institutions and legal norms that encourage race conscious hiring, is another fundamental social policy that has been implemented by elite institutions without much democratic input. The Supreme Court interpreted the democratically enacted Title VII that by its terms prohibits discrimination in employment to instead authorize affirmative action in United Steel Workers v. Weber (1979)—an opinion accurately characterized by William Rehnquist in dissent as “a tour de force reminiscent not of jurists such as Hale, Holmes, or Hughes, but of escape artists such as Houdini.” Administrators at state universities impose what increasingly resemble quotas for certain preferred racial and ethnic groups. These policies, to put it mildly, also lack democratic support: voters reject governmental race consciousness in hiring and admissions, whenever they are put to a state referendum.

To this list of social issues, one could add regulation by the administrative state of housing and small businesses, such as expansive environmental regulation that has never been voted by Congress, but made possible by open-ended delegation of power. Some of these elite actions are outright usurpations of  the democratic process while others test the outer limits of democratic norms. But all are end-runs around the messy process of building a social consensus. As a result, they foster political alienation and fuel populism.

I am not an expert in the politics and laws of other nations. But my sense is that there, too, populism is also a reaction against similar trends, particularly an elite-imposed multiculturalism of coercion, as I have called it, to distinguish it from a multiculturalism of liberty.

Some rights do need to be put beyond the vicissitudes of ordinary democracy, but those limitations must themselves be enacted by the people using the appropriate procedures of constitutional democracy. Populism today in no small measure reflects the failure of elites to respect the proper boundaries of constitutionalism.

Reader Discussion

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on April 10, 2018 at 10:57:12 am

I want to like Professor McGinnis. I am a graduate of his law school, the friend of a decades-long professor at his law school and the friend of a major benefactor of his law school. I am also what I would call a "constitutional conservative," a devotee of the Scalia/Thomas/ McGinnis school of originalism. I even go so far as not to let it be known in my conservative circles that among my fellow law school alumni are Arthur Goldberg and John Paul Stevens, and, indeed, out of great respect for Saint Pope John Paul II it has long been my wish that Justice Stevens were publically identified only as "JP Stevens, graduate of mid-western law school."

So, wanting so to like McGinnis and preternaturally disposed to do so, I am forever flummoxed when I read in L&L his apologies for having any moral or political sentiments tending toward President Trump's favor. Perhaps McGinnis' tendency to apologize for unpopular stands is a defensive characteristic, a survival mechanism attendant to membership in the modern legal academy where conservative types and thoughts are a "discrete and insular minority" in need of special protection (to paraphrase Stone in his Caroline Products footnote 4.) (I recall Harvey Mansfield saying of his treatment by colleagues at Harvard words to the effect: "They're polite; they just don't listen to me.")

Whatever the reason, McGinnis has done it again, today: he has apologized for the political force, Trump populism, yet applauded its legal consequence, a revolt against judge-made law. If you will, McGinnis sees the revolt against "juristocracy" as a legally desirable constitutional emanation of an unworthy political penumbra: the revolt of the masses, populism. (My pre-Roe law school generation was weaned on Justice Douglas' Griswold emanations and penumbras, so much so that we know they're legally useless but serve as excellent metaphor.)

I say give credit where credit is due: the Trump populist phenomenon is a constructive political force and the revolt against juristocracy is just one of its achievements, one of its long list of proofs of that fact.

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on April 10, 2018 at 11:50:27 am

I'm not sure he excused or apologized for it, but more that he just described it.

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Devin Watkins
on April 10, 2018 at 12:16:59 pm

I see your point, except this is not the first example of his (and L&L's) attitude toward populism, their assumption that it's a negative, destructive political force in the US and that Trump is bad for America.

We are not Venezuela; nor are we ripe for revolution that may have followed populist upheavals, say, in France of the 18th century, Europe of mid-19th century, Russia during WW I and in Latin America of the late 20th century.

Populism can be an invigorating, politically-revitalizing, constitutionally-conservative force, as it is with Trump, despite its reacting against political corruption, bureaucratic oligarchy, juristocracy and crony capitalism (all of which Trump and populism oppose.)
L&L misses that for the most part.

McGinnis is the least guilty of this phenomenon among their commenters. But here are a few examples from today's post that tend to illustrate what I mean:

"I am not (sic) great fan of either the President or of populism."

Democracy has been endangered and populism enlivened...'

'foster political alienation and fuel populism" (as if populism were a negative consequence of alienation)

"Populism today in no small measure reflects the failure of elites..." (as if populism is a disease brought on by rich greed.)

Today's commentary might better have been written as a positive story about populism's vision to attack and success in attacking judicial oligarchy rather than a story about populism as one of the myriad ill-effects of a juristocracy.

Perhaps it's more a matter of a hostile, negative tone about than of serious intellectual misgivings for populism, but L&L, McGinnis included, definitely give populism a bad rap and trash Trump routinely.

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on April 10, 2018 at 13:45:40 pm

‪Trump is trash, and McGinnis knows it. But McGinnis needs to protect his own ideas (and the delegation to the Heritage Foundation of the power to appoint federal judges) from Trump’s imminent downfall. So McGinnis has blamed the usual bogey-men (bogey-folx?) of the legal-academic left for the rise of Trump in the first place. That maneuver requires recognizing Trump’s “populism” for what it is: a base appeal to white fragility.‬ (I’m only an occasional reader of this site, but I think this is the first such recognition here.)

Anyway, I, for one, am not signing for the delivery of this package of blame. Return to sender.

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Will Singer (NUSL ‘12)
on April 10, 2018 at 17:14:36 pm

Gee whiz! I am so glad that decided to post here so that we, too, may be among the first to*recognize* that populism is nothing more than a salve for "white fragility".

How in the world did we ever miss it?

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Guttenburgs Press and Brewery
on April 10, 2018 at 17:21:34 pm

Timothy is correct. McGinnis, as do so many others, deploys the term "populism" as a pejorative. Never can these people accept that it is anything other than a futile attempt to reconstruct a mythical past; nor can they acknowledge that hold of populism may, in large measure, be a response to the fact that elite (and the forever DUMB leftists) have forsaken the particular for the global - that in their efforts to assure their place, power and prestige on the global stage they have castoff their fellow citizens.

"Let us savor the delights of Davos while Springfield smolders."

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on April 10, 2018 at 17:26:29 pm

Oops, forgot:

Nor can they imagine that the populists may, in fact, be advancing a particular polity, one that rewards responsibility, concern for their fellow citizens and for their country and that advances political humility as an objective of both the individual and the State.

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on April 10, 2018 at 18:31:48 pm

McGinnis advances a reasonable—indeed, a compelling—argument that populism rises when the majority feels that government is acting contrary to its wishes, and the majority lacks obvious mechanisms to remedy the problem. (Whether or not anyone LIKES populism is beside the point.) Alas, McGinnis proceeds to taint his thesis by needlessly using entirely partisan illustrations.

Sure enough, the Supreme Court struck down prohibitions on same-sex marriage, and many people dislike that result. BUT VASTLY MORE DO LIKE THAT RESULT. The Supreme Court also ruled that government cannot adopt certain gun control measures, and THE PUBLIC FAVORS GUN CONTROL. Where was McGinnis’s concern for “the messy process of building a social consensus” on gun control? Why does McGinnis site the former example, which does not support his thesis, but not the latter, which does?

Once again, McGinnis presents himself as a man with partisan preferences rather than principles. Even if it’s true, why advertise it? I expect that a non-partisan exposition is well within his capacity to deliver; why not offer it?

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on April 10, 2018 at 18:40:01 pm

What is (to quote you) "a base appeal to white fragility?"

I can make several guesses:
1) A "base appeal" is an appeal to a politician's base. Did I get that part? Or do you mean an appeal to our lesser angels, like the allies of Satan in "Paradise Lost?"

2) "White fragility" is the opposite of "Black fragility," but race aside, it refers to a state of physical, economic or psychological vulnerability, as in "Do Not Drop/Fragile" or "Starving and in need of food," or "Snowflake, wants hugs, counselling and a week without classes to cope with Hillary's loss."

Did I get it? can't really think of another meaning.

Check your Democrat Party talking points and let me know what you mean.

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on April 10, 2018 at 20:21:35 pm


Does the Public Favor Gun control? - or is this another example of the transience of of emotion driven policy prescriptions?
Then again, it all depends upon how one defines gun control.
Posed a certain way, I favor gun control - "No Nukes for you, buddy"
It becomes less certain when the question revolves around the Abrams Tank that I lovingly maintain in my front yard.
And quite different matter altogether when we begin to talk about my Barettas.

So who is avoiding the messy process of building a consensus on gun control? - McGinnis by not mentioning it or YOU by once again obfuscating the issue with specious data from polls embedded with spurious questions?

Hey, who is to say. In the meantime, I must get back to cleaning the treads on my tank!!! (and a very fine bottle of Mouvedre, from the Walla Walla Valley, of course).

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on April 11, 2018 at 11:11:10 am

Trump got a higher percentage of the minority vote than Romney did, which suggests that an appeal to "white fragility" is not the key here.

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Daniel Beez

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