Victoria Nourse and K. Sabeel Rahman strike new ground by exploring overlooked areas for democratic reform: statutory interpretation and economic regulation, respectively. For both, these areas have been discounted as potential ways to strengthen America’s democratic fabric because each demands precision and expertise that democratic publics cannot provide. According to Nourse, judges replace the people’s will with their judgement because they avoid using or misuse legislative evidence when interpreting statutes. Rahman argues that we often leave financial regulation up to managerial experts or the whims of the free market because it seems too complex to be regulated by the people themselves. Resisting the impulse to replace democracy with expert rule, both authors offer compelling arguments for democratic reform of these two domains.
In Misreading Law, Misreading Democracy Nourse offers a new take on an old worry, the countermajoritarian difficulty, which refers to the problem that five unelected Supreme Court justices can strike down laws reflecting the will of millions of citizens. She is also concerned about judicial power and offers a solution as it applies to statutory interpretation. In her view, current theories of statutory interpretation are undemocratic because they eschew or misinterpret the Congressional Record. Fidelity to legislative evidence, she argues, is required in a democracy because “statutes are the product of the people’s will” (p. 16). When justices fail to properly interpret legislative evidence, they create a democratic deficit by ignoring the “real authors of legislation, the people” (p.186).
As Nourse explains, frustrated by Congress’ “chaotic nature” (p. 45) and its inability to write nonambiguous statutes, judges often turn to theories of interpretation such as purposivism, contract theory, and textualism to add consistency and precision to statutory meaning. But each theory, she argues compellingly, misunderstands the rules and practices of Congress so dramatically as to “yield results that are highly undemocratic” (p. 62). This problem takes two general forms. On the one hand, textualists, such as the late Justice Antonin Scalia, often avoid legislative history in favor of textual analysis driven by canons of interpretation. On the other, when justices do use legislative history, they are plagued by a misunderstanding of “Congress 101.” For example, Nourse cites instances, such as Justice William Rehnquist’s opinion in United Steelworkers of America v. Weber, which rely so heavily on minority committee reports and motions to filibuster that justices risk “turning a filibustering minority’s will into law” (p. 74).
As a remedy, the author offers her own theory of statutory interpretation aimed at reforming legal education, which she calls “legislative decision theory.” Legislative decision theory provides a realistic, minimal, and democratic approach to statutory interpretation that seeks to “respect[t] what we know about Congress as a democratic body” (p. 101). Put briefly, legislative decision theory suggests that judges can and should apply a basic, noncontroversial understanding of Congress in using legislative evidence to interpret a statute. These basics include easily understood but often overlooked ideas, such as the fact that bills are drafted sequentially and thus one should privilege “later text and legislative evidence” (p. 69). In Chapter 3, which forms the core of her positive argument, Nourse explains in detail the five principles which make up her theory and illustrates their applicability through attention to case law. Together, these principles provide a clear and feasible approach for judges faced with ambiguous statutory text and a legislative record that they are not trained to understand. Her argument is persuasive when compared to the alternatives, and she defends her view well in the latter half of the book against critiques.
One challenge for Nourse relates to the democratic foundations of her argument which center on majoritarian legislative procedures. At times, she seems to suggest that legislative majorities make citizens “the real authors of legislation” (p. 186). Indeed, the view that Congress truly represents the people justifies her contempt for shifting interpretative power to the Court because unlike “members in the House and the Senate [who] represent constituencies directly . . . justices have no explicit representational mandate” (p. 179).
Nourse is right to suggest that it is undemocratic “to impose the personal views of the least democratic body in our government, the judiciary” (p. 101). But because Congress is often subject to the pressure of interest groups and money, we might view judges as an important democratic corrective. Indeed, one defense of judicial review is that while judges may strike down laws enacted by majoritarian procedures, they are justified democratically in doing so when they protect substantive commitments necessary for democratic citizenship (see Corey Brettschneider, Democratic Rights, 2007). Similarly, we might imagine a more capacious role for judges in statutory interpretation taking two forms. First, judges may try to look to public opinion to see if the actions of the legislature accord with the people’s actual interests. Second, judges might interpret statutes to protect democratic values, such as equality, even if such interpretation is less attentive to legislative evidence. In short, I wonder whether Nourse has minimized too greatly the role judges might play in enhancing American democracy because she places so much faith in the idea that Congress reflects the people’s will. Despite these questions, Misreading Law, Misreading Democracy is clearly argued, draws impressively on case law and on research in philosophy and social science, and provides an important corrective to debates on statutory interpretation.
Democracy Against Domination shares both Nourse’s worry over elite-driven policymaking and her commitment to empowering citizens. But whereas Nourse’s view of democracy is mediated through Congress, Rahman pushes in a more radical participatory direction that aims to use economic regulation “to rebalance political power” (p. 98). According to Rahman, the problem faced by our economy is “not . . . a matter of income inequality or distributive justice, but . . . a broader problem of power and domination” (p. 2). Not only do many citizens fail to achieve their desired distributive outcomes, but they are also unable to push for change because their efforts are thwarted by “cognizable actor[s]” (p. 82), such as large corporations or wealthy individuals and also by the structure of markets.
Rahman argues that neither of the two prevailing approaches to economic regulation in the twentieth century have properly addressed the problem of domination. On the one hand, conservatives urge reliance on market mechanisms and, on the other, welfare liberals argue for more and better expert management of the economy. The problem, he suggests, is that neither is democratic enough. Rahman builds his view of democracy against domination, which sees the key challenge of economic inequality as one of “political agency,” and “suggests that in order to respond . . . we need to . . . expand—rather than limit—the political agency of citizens themselves to engage in self-government” (p. 27).
The idea that not only the outcomes of economic regulation but the process itself should “empower traditionally marginalized stakeholders to have a more direct voice in policymaking” (p. 169) is radical, novel, and important. Rahman’s normative argument leads him to two kinds of solutions. First, he suggests that we must not only regulate but also place limits on large financial firms that pose a systemic risk. And second, we should empower citizens themselves to actively engage in the process of economic regulation (pp. 167–68). In the latter half of the book, he proposes a wide array of possible and plausible institutional mechanisms designed to create “hooks and levers for catalyzing democratic political agency” (p. 154). Rahman imagines that rightly oriented, the regulatory state can empower democratic citizens by offering them “a target for mobilization” that is “capable of redressing grievances” (p. 143).
Two challenges to this timely book are worth considering. First, classical liberals and libertarians will view this book as too greatly inhibiting economic liberty. For example, Rahman argues that the use of financial instruments that fail to advance the public good can be restricted. As a result, it might be appropriate to limit derivates and securities that “do little to enhance social welfare” (p. 123). While his conclusion may be right, on balance, regulatory limitations do limit the individual freedom of those involved in such practices. If I wish to use my capital to engage in these kinds of financial bets, I am now decidedly less free to do so. Rahman’s response is to suggest that the use of such instruments “creates unjustifiable risks for the broader polity to enrich the few in the financial industry” (p. 123). While many, and I among them, will be sympathetic to his argument that an interest in democracy and the need to protect against domination trumps the need for pure economic freedom, the trade-off is worth noting.
Second, I wonder about the feasibility and demanding nature of Rahman’s requirements of citizens. Given the complexity of economic regulation, it is unclear that citizens either will want to spend their time working through the nitty-gritty of economic regulation or be able to do so in a way that leads to a productive economy. The author has anticipated this critique and his responses shed light on his view. First, he draws on epistemic democracy to suggest that when properly structured, collective wisdom can make good decisions (pp. 104–5). Second, we might imagine, given Rahman’s view, that because some financial innovations provide little to no social value, he believes that financial instruments should become simpler and thus more able to be regulated by the people themselves. Finally, he argues that regulatory institutions not only provide for democratic agency but also present a learning opportunity for citizens. On his view, for example, regulators should function “as the central figure[s] driving democratic dialogue” with citizens, and “[e]xpertise-oriented practices such as cost—benefit analysis” should be “recast as tools that facilitate deliberation” (p. 151). But this final concession invites a concern that in the end, the people will simply be led by experts because they will be unable or unwilling to spend the time necessary to properly evaluate the complex laws and analyses with which he aims to have them engage and then oversee. Nevertheless, Democracy Against Domination is analytically clear and well argued, and it deserves to be read widely by political theorists and reformers alike.
Both books offer exciting contributions to democratic theory and public law because they move beyond critique and toward concrete problem solving. These works share the important insight that we should not treat complexity in public policy and law as an invitation to search for simpler and less democratic solutions.
