FEDERALISM AND SEPARATION OF POWERS: INSTITUTIONAL DESIGN AND DEMOCRACY

July 21, 2021

By Patricia Sohn


As we contemplate overhauling and reconceptualizing a much-needed program in American Civics for elementary and secondary students, some thoughts….

If you ask some legal experts who hold American law degrees – not all, obviously, but some – they will tell you that when lower courts decide that they can make decisions regarding the validity of national-level policy, it is business-as-usual.  They will tell you there is precedent to support it.  They will tell you it has been that way for a long time.

There is nothing in the Constitution that suggests that lower-level institutions – including judicial institutions – can make decisions regarding any issues that get decided at the levels above them.  That is, lower courts make decisions for the local level on issues that are not decided at the state or Federal level.  Upper-level state institutions – including upper-state judicial institutions – make decisions regarding policy, laws, and other issues decided and formulated at the state level.  And Federal institutions – including judicial institutions – regulate the Federal level regarding any review of Federal-level legislation (Legislative), Federal-level policy making (Executive), etc.   As someone who studies, among other things, courts outside the U.S. – courts that have frequently taken their lead from the great U.S. institutional tradition regarding construction of the judiciary, separation of powers, etc. – it is always shocking to me to see this obvious overstep of power on the part of lower courts in our context. That is, lower court can also mean any court as it is positioned, hierarchically, in relation to the courts above it.

That is, whether we like it or not, lower courts are circumventing Democracy when they make decisions regarding policy, law, or other issues decided and/or formulated at the upper-state or Federal levels – and likewise up the institutional food chain.  Federal courts review decisions made at the Federal level or below.  Upper-state courts review decisions made at the state level or below.  Lower courts have no such powers – by institutional design.

Beginning in the 1970s, worldwide, and here, politicians have trended toward avoiding the difficult and sometimes conflictual deliberative legislative process by – going to courts in order to fiat their own agendas as against the Democratic legislative process.  The problem with this method is that courts are not elected, appointed, or designed to make policy or legislation.  And lower courts have no authority above their level (e.g., upper-state, or Federal).  Policy and implementation of law and judicial decisions are the jobs of the executive branch – by institutional design.  Legislation is the job of the legislative branch – by institutional design.  When courts try to do either – to say nothing of both, as they are attempting in our era – what we end up with is gouvernement des jugesGouvernement des juges is that ontological state that was key in responsibility for mobilizing the French Revolution.  And, it is an empirical reality of judicial history that Nazi Germany, Mussolini’s Italy, Stalin’s Soviet Union, and other “great” examples of authoritarian “progressivism” in the West used precisely this judicial method to insert authoritarianism into their nation-states in a slow and steady way, beneath the awareness of most, such that high-authoritarian rule was strongly in place before most people noticed it, and by which time it could not effectively be resisted without all-out international war.

Is this really where we want to go again?  We have people who are citizens, here, now, who lived, and/or whose families lived, on both sides of those lines.  For those who favor German historical judicial methods from the 1930s and 1940s, for example:  Learn to live with your failed past.  Do not try to implement it on those of us, and our ancestors, who fought to show it for what it was and to defend Democracy here and elsewhere.

As someone who studies Israel and the Middle East (MENA), I know people who lived through the Holocaust.  I have known people who lived through this Western judicial past and spoke about it with horror – why didn’t anyone notice when it was happening, and before it was too late? 

We put our heads in the sand to the extent that we teach ourselves that non-Western institutions are the only institutions and practices that offer threats to our Democracy.

In my view, what is happening at the lower court level when it positions itself to weigh-in on upper-state and Federal level legislation (Legislative process), policy making (Executive process and authority), etc., at the levels above it – to say nothing of making decisions by fiat regarding the same above their level of authority – institutionally speaking, we are witnessing a deliberate and conscious effort at regime change.  And by that, I mean home-spun regime change toward authoritarianism, not democratization. We already have a perfect democratic institutional design, and a great democracy; change to it will make it worse, not better.  Sadly, in my view, it is not our institutions that are messed up; it is individual people.  Or, it is individuals acting in criminal, corrupt, and or self-interested ways and ignoring their duty as citizens of a democracy to act in the public good – for the good of the Nation – in addition to their own good.  As stated recently by a former congressman from South Carolina, “Democracies require educated and moral citizenry.”  I want to suggest that he is absolutely correct, and the purveyors of individual-self-maximization theories, where presented as how-to texts, are missing the point entirely in suggesting that morality is above and beyond the scope of anything that we can expect from politicians, our citizenry, or human individuals and communities in general.  There is a constitutional correction for immorality in politics and elsewhere among lay or politician citizenry; that correction is the criminal justice system, as appropriate.  We do no service to ourselves as a Democracy to the extent that we throw our hands in the air and say, Boys will be boys (or, now, girls will be girls as well, and humans will be humans), and cite The Lord of the Flies, or some such, in justification and complicity with crime, criminality, and corruption amongst our politicians and ourselves.  It is precisely the path to Nazi wonderland.  (I say that with maximum sarcasm.)

Do we really want to be on the wrong side of history?  It is time that we not follow these people.  It is time that we put their ideas down and bring back our perfect institutional design for the judiciary, and for each level within the political system (lower, state, and Federal).

What does a “moral citizenry” mean?  For some religious thinkers, it means citizens who are religiously moral within a certain religious framework (as a conservative Buddhist [Tibetan], I actually agree with a lot of what is in this link, although I would suggest that making the old-fashioned solution, Marriage, legally available again is the best way to resolve the high unmarried percentage for teenage girls who are pregnant; it might make some whole families of lives better as well).  For some founders, it meant a citizenry both ethical and religious, per se, and no other such citizenry could be governed by Democracy.  For scholars such as Robert Bellah, it was tied to a Lockean notion of “public morality”; the “public good”; and debates regarding variation in sub-community views of morality as tied to certain (similar or conflicting) cultural practices.

As I have suggested above, Democracy has a very good solution to immoral publics:  the criminal judicial system.  I make this point in an ecumenical frame of religious pluralism, not specific to one religion, but to those moral and ethical principles required for the proper functioning of the Democracy.  That is, we need no return to The Scarlet Letter, The Crucible, or The Witch of Blackbird Pond to order and control ourselves as a People.  But we do need to be a People – in the main – committed to the moral Good of our institutions, and the ethical behavior required for them to function.  The idea of religion is problematic for some of the more secular of our public; despite their self-presentation and self-conception, nonetheless, they make up a markedly small proportion of our public, which returns results of belief in God at high rates.  In my view, belief in some moral order larger than the Self – typically, God in some form – is probably critical to any given individual’s willingness and ability to embrace the moral Good of our institutions, and the ethical behavior required for them to function, as they do, for the Public Good.  That is in no way a call for religious or other witch hunts but, rather, a call for recognition that true atheists are a minority of our population and that they may be inherently less likely than most of us to embrace the moral Good of our institutions and the imperative of the notion of the Public Good as compelling in general.  Likewise, extreme religion may be unwilling to accept that the moral good of our institutions applies to the Public Good, where that Public practices religions other than their own, or even different than their own denominations and streams (historically, typically, minority religions).  Rather than throwing pot shots, the one extreme community against the other, I would suggest that the moral Middle unite to form balance for all of us (whether the extremes like it, or not); and begin to apply the criminal justice system to those outliers among citizenry or political offices who act with malfeasance in the practice of our institutions.  Our institutions are all that separates us from Baby Doc’s Haiti, Castro’s Cuba, and a thousand other historical authoritarian regimes.  Authoritarian regimes are a-dime-a-dozen; our Democracy is a rare prize worth maintaining.  (I write as someone who spent a year in Haiti in 5th grade and love it as a country.)

Postmodernist legal “analysis” in this context, in my view, is a Scoundrel.  The lines in our institutional design are clear.  They are not opaque.  Outcomes are correct when our institutions are followed in practice.  Outcomes would run from arbitrary (a form of authoritarian rule) to fully-authoritarian to the extent that we do not follow our institutions in practice.  Fortunately, our state and Federal levels work very well in my view.  Our lower courts, construed as those courts acting above their institutional level, and particularly those that insert themselves into state and Federal level issues above their institutions – have lost their way in my opinion.  They are taking us down a predictable rabbit hole, one experienced in the 1930s and 1940s in certain parts of Europe already mentioned.

That is, we appear to me, today, to be revisiting some of the European debates of the 1930s here at home in the U.S.  It is not a surprise, perhaps, since we live in an immigrant society, and because some of those debates have been invoked in recent decades, albeit in minorities, in Europe as well.  I believe we should be starkly clear on World War II:   Who won, who lost, who was right, and which institutions were flat-out reprehensible, among the worst of violators of human dignity, freedom, and rights in world history.  That is, as stated in my last blog piece, we in the U.S. are not a bad place.  We are a very good place to be.  Nazi Germany – that was a bad place in world historical terms.  Parts of Eastern Europe under Nazi power, and later under Soviet power – they were bad places in institutional terms, and in world historical terms.  No matter one’s feelings of cultural pride for one’s historical ancestry – which is valid for all of us – acknowledging these failed and disgraced experimental institutional systems as not our own, and not something to be rehashed on U.S. time, today, is critical to the on-going peace, standing, and Democracy of this country in my strongly held view. That is, it is the Soviet experiment that failed, and in short order. Our Democracy is not an experiment. It is a successful, tried and true way of life and political organization. Our Democracy is well on its way to its 250th birthday.

Our institutions must be followed precisely in practice in order to maintain our democratic Union.  And it is not hard to do.  What it requires is a will to follow the institution rather than one’s own preferences in a given moment.  We can demand that as a People.  We did so in the Revolutionary War.  Anything else does not have the consent of the governed.  Without the consent of the governed, we are just another Cuba.  If your own personal historical imagination does not include this possibility, please, go talk with someone who lived through the Holocaust.  Certain institutional moves take us in specific institutional directions.  It is not rocket-science.  It is institutional analysis.

The legislative process is frustrating because:  Some days you win, and some days you lose.  Courts may – if one knows how to use them – feel or be more effective for legislators, because they can be used to force through one’s own policy preferences as against the democratic legislative process to which they have been elected.  Scholars differ on the normative merits and value of this trend, but it is an empirical trend that has been noted and criticized.

These observations may sound nice and highfalutin, idealized and idealistic.  The problem is, without these institutional design constraints in practice, we become not a Democracy.  To the extent that our institutional design – including separation of powers between executive, legislative, and judicial at every level, lower, upper-state, and Federal – is not practiced at the micro-level, we move toward authoritarianism.  Clearly, the American public is not going to allow that to happen.

My suggestion would be:  Fund the police, and all of the multicultural and anti-misogyny training necessary to keep them in appropriate functioning order for the betterment of our peaceful, clean, and safe pedestrian boardwalks.  But:  Dismantle the lower courts.  There is no reason for them to exist.  I do not work in the academic field of Criminology; however, I am aware enough of that literature to know that we have forty or fifty years of documentation regarding how that court system is not working appropriately.  Many of my colleagues in American public law have told me – it is interest groups.  Every interest group, and every wacky sub-sub-community, wants to have “its say” in how to “interpret” the law.  The problem is, interest groups, and individuals from communities (and sub-sub-communities), are not elected or appointed to do that job for the People.  They threaten to vote people out of office if they have the temerity to do their jobs appropriately, by their training, and in their best conscience as professionals and intellects who were, in fact, elected or appointed to that task.  Put all issues in upper-state and Federal courts.  They are better able to protect themselves in relation to law, Constitution, separation of powers, and other issues of institutional design.  My prediction would be, the docket of issues that currently go to lower courts in some places would fall by 75%.  No reason to change court houses, or even personnel in most cases.  But (1) set the bar higher.  (2) Empower the courts.  And (3) keep them at their own level (e.g., upper-state applies to upper-state and below, Federal applies to Federal and below, etc., as in our institutional design).  Local autonomy does not mean that the local governs the Federal in the local context; or, would you like to have the municipal govern the state in the same way?  If so, then we are in a Game; and that game has changed entirely with many, many unpredictable consequences.  Remember that the local needs the Federal in order to refrain from devolving into majoritarian tyranny (empowering the local too far can empower some folks who may not benefit anyone – e.g., “We are all being bugged with implants by Federal doctors,” and such nonsense).

To those in our national context who argue that the U.S. courts can do anything they like because we are the international leader of Democracy – so we can afford to fudge the edges on democratic practices and pesky issues of institutional design and separation of powers (!) – as a scholar who works in the international context, I ask:  Please guide me in how you think I should answer when I speak with international legal scholars, international officials, lawyers and judges, religious leaders, and NGO leaders and volunteers across the political spectrum in international context who hold us as an institutional (and judicial) role model.  When they ask me:  What are the lower courts doing in the U.S., and why in Heaven’s name are the People allowing them to make decisions regarding national-level (or even state-level) policy – What should I say?  I have received such questions for the going-on 30 years that I have been doing research in this area in comparative and international context.  So, when you have an institutionally correct, institutionally valid answer within the U.S. institutional framework that I can offer, I would welcome it.  And, no, “precedent” is not sufficient.  We are telling people abroad that they should follow our institutional design, and then we do not follow it ourselves.  You are making the lives of those of us who work in my type of field very difficult when we go abroad.  I am simply at a loss for how to defend this practice in any rational way.  I simply smile and say that I do not study American politics, and that scholars, officials at every level, courts, lawyers, the grassroots People as individual citizens, interest groups, etc., all have varied positions on the topic – We allow for those types of differences of opinion.  The answer is, for obvious reasons, not satisfying or complete.  If I have a more topically specific answer, I give it.  An institutionally correct answer would be more beneficial to cross-cultural communication, and to my beleaguered libertarian and Federalist heart.

That is, if we would like to continue to be an international leader on democratic institutional design, courts, Rights, and the like, we cannot fudge the edges when it comes to institutional, democratic, and judicial practices.  To my friends who say that the U.S. judiciary lives on an island and must be allowed to do as it likes despite the institutional design issues that we are selling and demanding of the international context – my answer is:  We may soon be an island if we continue down your judicial road. 

Some legal scholars in the U.S., in my strongly held view, are encouraging a move toward authoritarianism here – an “anything goes” approach to judicial power at the lower court level.  (I make this statement as someone who has written quite positively about the expansion of judicial power at the national level in some national contexts, under my maiden name, Woods).  I say to them, again, if you live as though in isolation, the world will become isolated from us.  Just a thought.

Part of the basic philosophical issue as I see it, as a comparativist, in the domestic context, here, is that some lawyers, politicians, and individuals refuse to accept when they lose.  They find the pesky democratic process irritating, slow, and an impediment to their grand designs and agendas.  I can sympathize; I do not envy politicians, in particular, their work.  But:  the Democratic process is our process, like it or not.  Individuals who feel thus thwarted may not like a Federal policy, or may have lost in the deliberative legislative process, so they run to the lower courts.  When your policy preference is thwarted, it is because the People, as correctly limited by constitutional constraints, have decided against you.  My answer, said a little less gently, and only as a citizen:  In a democracy, you do not personally decide for the whole population.  The People rule here, not individuals with ties or influence.  We are producing too many lawyers.  And we are too often training and empowering them to engage in a daily, silent revolution against the American People.  It is not all lawyers who are bad, but some.  Some lawyers are wonderful and uphold our rights and justice system admirably.  In my view, a large degree of the fault for those who are “bad” lies in their academic and other training, to wit, see individual-self-maximizing theories.  We are training generations of political scientists and lawyers not to be Good, not to care about the Public Good, to see its advocacy as naïve, to see it as unnecessary and immature.  Democracy requires a moral public.  Democracy puts immoral publics, where they cross the line to criminality, in the criminal justice system.  In my view, too much immorality that crosses that line is not being put where it belongs because we are all stultified by individual-self-maximization as a theory.  For me, the answer is far more simple than the theory and some of its mystifying mystics insist:  If you would like to live in 16th century Italy, war-torn and tribalist as it was, be my guest.  But don’t take me or my country there with you.  (I say so as someone who adores Florence.  No offense.  It is 2021!)

So, to my friends and critics who advocate these theories as existential and ontological ideal models for how to be a politician, rather than as cautionary tales and means for handling strategic interactions with individual-self-maximizers:  This country was not built upon Machiavelli.  It was built upon a democratic Dream and perfect institutions.  I will not see Machiavelli and his mystified apostles take it down.  In any case, among the original of these theories did not advocate individual-self-maximizing, it simply noted it as a possibility among the less worthy of politicians (and others).  It suggested, instead, that when confronted with adversaries and enemies, all of them should be assumed to be rational albeit following a logic that we may or may not immediately understand, or that we may or may not find repugnant; to the contrary, if we assume our adversaries and enemies simply to be insane (a common practice, at least in public discourse, at the time), we miss important moments for effective strategic responses, and important possibilities for diplomatic successes.

Several additional points:

  1. Judicial restraint does matter.  That is, while almost every issue may be necessarily justiciable at the level of a national constitutional court, not every court has jurisdiction over every issue in terms of legal theory or institutional design, particularly taking into consideration separation of powers.
  2. The integrity of our institutions does, in fact, matter more than my or your individual policy preferences in a given moment.  Why?  Because our institutional design is our Democracy.  Without it, we are no longer a Democracy.  I have lived in real dictatorships abroad (e.g., Baby Doc).  One can make one’s way through them; and they have their benefits and drawbacks.  But Democracy matters.  I can wax on ad nauseam about the truly glorious benefits of non-personalist, merit-based Bureaucracy.  Yes, Bureaucracy in the hands of a well-functioning Democracy is a beautiful thingAs Michael Mann has pointed out for us, what many of us would call bureaucracy (liked to a larger concept in his work, infrastructural power) in the hands of an authoritarian regime can be and has been used for efficient and systematic oppression of its own population.  That is, bureaucracy, in itself, is normatively neutral.  It is a powerful tool, so we must habitually exercise and cultivate great care in its use (e.g., where Bourdieu tells us that a strong dissonance between habitus and its environment will lead to conflict or “negative sanctions,” such as in inter-generational dynamics regarding conflicting norms, I am suggesting that we must continually re-make the closeness of the correspondence between our theories and our practices, normatively and in action, or risk moving theories such as Democracy to the halls of history, lost, as such, to the empirical present).  I have argued that our institutions are moral, that is, in their construction and design.  They require moral and ethical persons and behavior to follow them in practice in order to maintain that moral status, and, thereby, the Democracy itself.  Otherwise, we move very quickly to Mann’s quadrant of authoritarian rule, that is, high degrees of what we might call in common parlance bureaucratic efficiency (state-state and state-society), implementation, and (territorial) capacity; and low degrees of public participation in governance (or, what he calls, high degrees of “despotic power”).
  3. At the individual level, we must be prepared to win or to lose on a given policy or legislative debate.  If we are not willing to lose, what we will lose in the not-so-short run is our Democracy.  Then, get ready to pay bribes every time you need to renew your license plate, and to face armed guards everywhere you go.  Just a thought.  (If you have never lived in an authoritarian regime, you may not feel the imperative – really, the need – for a well-functioning Weberian Bureaucracy in the way that I do; that is, personally.  Those who I have asked who have such experience say they understand it well.  Kudos, too, to the DMV [Department of Motor Vehicles] in every city and town in which I have lived; your graceful, systematic, co-equal, Rational functioning is the material substance to my analysis!)
  4. If California and Texas – and Washington, and several others states – want to continue to take us down this road of using lower courts to try to change national policy, as far as I am concerned, they can secede from the Union and give back all of their Federal funding for engaging in this practice of judicial fiat against the Will of the American People as expressed through the democratic process at the Federal level. 
  5. Our federated states are not different in the ways that the nation-states of Europe are different.  We have congruity of institutional design across the borders of our federated states such that the American People can expect congruity of treatment as the Governed from one federated state to another on certain basic issues.  We are a Union.  That is, our states function as Provinces under federal rule, not as differentiated nation-states.  A nation-state is a country.  A federated state, in comparative terms, is roughly the same as a province.  “Good fences make good neighbors” – and some rights of federated states to self-governance on certain issues of legislation, administration, and justice – does not make every farm into its own country, nor any city into a city-state. 

My advice, for what it is worth:  If you, on a personal level, want to have a direct impact on Federal legislation or policy, in all sincerity, run for national office, or go work for the Federal government.  If you want to have an indirect impact upon – or contribute to implementing – Federal legislation or policy, run for state or local office, or work for state or local government in some capacity (obviously, these jobs also entail all of the myriad of tasks involved in running the federated states); train and be part of the national-level media; rise to the national level in your own profession; become an artist or poet; go into international law; become a scholar; join the military; join Teach for America; join the Peace Corps; teach English abroad; work for an NGO, or start an NGO.  Be part of the legitimate democratic process.  Do not harm the integrity and standing of our Democracy by being a naysayer on the sidelines and/or using our institutions in ways that endanger our Union.

States have means to address Federal policies such as DACA, the recent political debate that inspired this essay.  It is not through state courts, or even lower-level Federal courts as I read the Constitution as a citizen (see below).  It is through the U.S. Congress, the U.S. Senate, the Federal Executive, and the U.S. Supreme Court.  And they have access to the hearts and minds of the People through local, state, and national-level Media outlets.  Today, there is also the internet, of course.  They have no other legitimate means, in my view, to address Federal (Executive) policy, or Federal (Legislative) legislation without harming the institutional integrity of our Democracy.  In the Middle East (MENA), which I study, silence often takes the social (or even legal, in certain contexts) status of assent.  That is, if a woman does not vocalize her disapproval for a marriage proposal, for example, that is often given as a (modest) sign of assent; e.g., she does not want to get into the (torrid) details and trusts her Father or Mother to represent her interests in the negotiation of the marriage conditions.  Women in the Middle East (MENA) are very vocal when they want to be, and far more empowered in this way that we typically assume. 

Americans, likewise, are vocal when they think it is important.  When Americans do not vocalize their disapproval for policies, I would encourage all of us to take it the same way: silence as assent.  We scream loudly when we disapprove.  So, for politicians who have lost on an issue, I would not take relative silence as a sign of apathy but, rather, as a perhaps disappointing sign of assent, but assent, nonetheless.  And, I would suggest, it is our roles as citizens – including officials – to let the Will of the People stand unless and until they vocalize and mobilize otherwise, and win the debate through legislative, executive, judicial process, and/or process of public opinion, at the correct institutional level to the issue at hand.  Sometimes, when the American People is quiet on an issue, it means we are actually happy.  Politicians and individuals, in my view, need not rush to urgency just because one person – or even some number of people – are bent out of shape on this issue or that:

It is a two-part wrong direction that we have recently experienced, the suggestion that (1) accusation is the same as conviction and guilt; and (2) one wealthy or influential person’s displeasure justifies overturning the public will (in the absence of a constitutional counter-majoritarian issue that would justify going against it).

According to Kenneth Mayer, as of 1999, the practice of either state or Federal courts overturning Federal Executive Orders, while it dated to 1789, was rare (only sixteen cases between that date and the mid-1950s); another case of note was mentioned in the mid-1990s.  That is, it is an odd practice in our context.  Its increase in our period is not a net positive.  Only the U.S. Supreme Court should have jurisdiction over Federal Executive Orders.  Article III, Section 2 of the Constitution, for example, states that when a (federated) state is party to a judicial case, the U.S. Supreme Court “shall have original Jurisdiction.”  Likewise, Article I, Section 10 specifically denies (federated) states the power to maintain troops or war ships; to “enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay”; to impose import Duties or to mint coins; or otherwise to act as its own country.  To suggest that state courts challenging Federal Executive policy of the highest office of the Land does not constitute a state contest of Federal policy is a fiction.  In my view, it is time that the American Public decided not to stand for it.  Moreover, for many other countries, particularly those influenced by the civil law system, but even in some common law systems, allowing lower courts what amounts to judicial review of Federal-level policy or legislation is an oddity; direct access (e.g., standing), or “original jurisdiction,” in the institutionally appropriate court level is available.  The lack thereof in our practice today – which is not the same as the institutional design that we teach as civics or preach internationally, nor even that which appears in the Constitution – creates institutional irrationalities and irrational incentive structures that lead us – our People and our officials – away from our commonly cherished goal of a free, open, and orderly Democracy.


Dr. Patricia Sohn, Ph.D. is an associate professor. She specializes in Middle East (MENA) and Israel/Palestine politics, and particularly the intersection of religion and politics, courts and politics, and gender politics. She has interests in historical institutional, political sociological, micro-level & ethnographic, and grassroots analysis of state and society. A prime example of the American melting pot, she has heritage from Prussia, the Philippines, Spain, Ireland, and Holland.
Note: The views herein represent only myself, not my employer. –PJS

Blog at WordPress.com.

Up ↑

%d bloggers like this: