A Constitution of Democratic Experimentalism Michael C

Cornell University Law School Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 3-1998 A Constitution of Democratic Experimentalism Michael C. Dorf Cornell Law School, [email protected] Charles F. Sabel Columbia University Follow this and additional works at: https://scholarship.law.cornell.edu/facpub Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Dorf, Michael C. and Sabel, Charles F., "A Constitution of Democratic Experimentalism" (1998). Cornell Law Faculty Publications. 120. https://scholarship.law.cornell.edu/facpub/120 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 98 MARCH 1998 NO. 2 A CONSTITUTION OF DEMOCRATIC EXPERIMENTALISM Michael C. Dorf and CharlesF. Sabel* In this Article, ProfessorsDorf and Sabel identif a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coor- dinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordinationwithin and amongprivate firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that affect them. In democratic experimentalism, subnational units of government are broadlyfree to set goals and to choose the means to attain them. Regulatory agencies set and ensure compliance with nationalobjectives by means of best- practiceperformance standards based on information that regulated entities provide in return for the freedom to experiment with solutions they prefer. The authors argue that this type of self-government is currently emerging in settings as diverse as the regulation of nuclearpower plants, community policing, procurement of sophisticatedmilitary hardware,environmental regulation, and child-protective services. The Article claims further that a shift towards democratic experimentalism holds out the promise of reducingthe distance between, on the one hand, the Madisonian ideal of a limited government assuredby a complex division of powers and, on the other hand, the governmental reality characteristicof the New Deal synthesis, in which an all-powerful Congress delegates much of its authority to expert agencies that are checked by the courts when they in- fringe individual rights, but are otherwise assumed to act in the public inter- est. ProfessorsDorf and Sabel argue that the combination of decentralization and mutual monitoring intrinsic to democratic experimentalism better pro- tects the constitutionalideal than do doctrines offederalism and the separation of powers, so at odds with current circumstances, that courts recognize * Michael C. Doff is Professor of Law, Columbia University. Charles F. Sabel is Professor of Law and Social Science, Columbia University. For extraordinarily helpful discussions, the authors are indebted to Bruce Ackerman, Mark Barenberg, David Charny, Joshua Cohen, Sherry Colb, Archon Fung, Gary Herrigal, Brad Karkkainen, James Liebman, Debra Livingston, Peter Lindseth, John Manning, Jerry L. Mashaw, Frank Michelman, Steve Page, Peter Strauss, Laurence Tribe, Roberto Mangabaeira Unger, Jane Waldfogel, and Jonathan Zeitlin. For research assistance, they wish to thank Alex Cohen, Tricia Hoefling, Christopher Kirkham, Andrew Mainen, Gian Neffinger, Tara Newell, Abrielle Rosenthal, and especially Robert Liubicic. For insight, patience, and good humor, they thank Eric Bravin and Seda Yalcinkaya. HeinOnline -- 98 Colum. L. Rev. 267 1998 COLUMBIA LAW REVIEW [Vol. 98:267 the futility of applying them consistently in practice by limiting themselves to fitful declarationsof their validity in principle. For example, conventional administrativelaw imposes externaljudicial checks on administrativeagencies, obligingjudges to choose between superfi- cial scrutiny offormal proprieties and disruptive, indeed often paralyzing, inquiry into what an idealized agency might be expected to do. By contrast, democratic experimentalism requires the social actors, separately and in ex- change with each other, to take constitutional considerationsinto account in their decisionmaking. The administrative agency assists the actors even while monitoring theirperformance by scrutinizing the reactions of each to relevant proposals by the others. The courts then determine whether the agency has met its obligations to foster and generalize the results of this information pooling. Agencies and courts alike use the rich record of the parties' intentions, as interpretedby their acts contained in the continuing, compara- tive evaluation of experimentation itself In the administrativeand related settings, the aim of democratic experimentalism is to democratize public deci- sionmakingfrom within, and so lessen the burdens on a judiciay that today awkwardly superintends the every-day workings of democracy from an exter- nal vantage point. Finally, the Article reconceptualizes constitutional rights. Relying in this and other regards on ideas associated with early-twentieth-century American pragmatism, the Article treats disagreements over rights as princi- pally about how to implement widely shared general principles. Under the heading of "prophylactic rules" and related doctrines, the United States Supreme Court has recognized that there are often a variety of acceptable remedies for a violation of rights or a variety of acceptable means of achiev- ing a constitutionally mandatedend. The authors arguefor a radicalexten- sion of these doctrines, in which judicial recognition of a general, core right, permits substantial experimentation about how to implement that right. They propose institutional mechanisms to facilitate such experimentation. The authors contend, however, that with rights, as with other constitutionally entrenched principles, means and ends cannot be neatly separated, so that experimentation at the periphery also redefines the core, ultimately chal- lenging the very distinction between core and periphery. TABLE OF CONTENTS I. THE CONSTITUTIONAL PREDICAMENT AS PROLOGUE ......... 270 A. The Crisis ........................................... 270 B. Proposed Solutions .................................. 272 C. Limitations of the Existing Categories ................ 274 D. A New Form of Deliberation ......................... 283 E. Constitutional Interpretation ......................... 289 II. CENTRALIZED AND DECENTRALIZED ORGANIZATIONAL FoRms. 292 III. DEMOCRATIC EXPERiMENTALISM ............................ 314 A. Good Government under Conditions of Volatility and D iversity ............................................. 315 B. Local Government on Pragmatic Lines: Directly Deliberative Polyarchy ................................ 316 HeinOnline -- 98 Colum. L. Rev. 268 1998 1998] DEMOCRATIC EXPERIMENTALISM 269 IV. PIECES OF THE NEw POLYARCHy. EXAMPLES OF BOOTSTRAPPING REFORM .................................. 323 A. Family Support Services .............................. 324 B. Community Policing in Chicago ...................... 327 C. Simultaneous Design: Military Procurement .......... 332 D. Limitations of Piecemeal Efforts ...................... 336 V. THE NATIONAL FRAMEwoRK ............................... 339 A. Congress ............................................ 341 B. Administrative Agencies .............................. 345 1. Benchmarking ................................... 345 2. Obstruction ...................................... 348 3. Novel Forms of Organization ..................... 354 C. Antecedents and Lessons ............................. 356 1. National Highway Traffic Safety Administration... 357 2. Antecedents in the Forest Service ................ 364 3. Nuclear Power Plant Safety ....................... 371 4. Innovative Environmental Regulation ............. 373 D. The Role of Courts in the National Experimentalist System ............................................... 388 1. The Dilemma of Judicial Review as the Muddle of Means and Ends ................................. 390 2. Experimentalism and the Giving of Reasons ...... 395 3. A Partial Reconceptualization of Judicial Review and Rights ....................................... 398 E. Criticisms and Big Worries ........................... 404 F. Constitutional Scope ................................. 418 VI. FEDERALISM ................................................ 419 A. The Arc of Federalism ............................... 421 B. New York v. United States .............................. 423 C. Toward a New Delegation Doctrine .................. 428 D. Experimentalist Federalism in Existing Legislation .... 432 VII. DEMOCRATIC EXPERIMENTALISM AND SEPARATION OF PowERs..................................................... 438 A. Separation-of-Powers Doctrine and its Discontents .... 439 B. Present and Future Solutions ........................ 442 VIII. INDiVIDUAL RiGHTS ....................................... 444 A. The Awkward Consensus

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