The irony is that despite this fixation on the person of the president, the real source of executive power is the administrative state. Congress delegates authority to the executive, typically with only the most basic principles attached. It rarely recognizes that these principles almost always conflict with other principles, often articulated in other laws. All this requires resolution and implementation, which we have chosen to address by seeking expertise. American politics has therefore witnessed the rise of administration over politics.
Overcoming this requires recalibrating our view of expertise. There is nothing intrinsically wrong with deferring to experts in the same way Lincoln deferred to the Framers: respectfully but not blindly. But there are few political questions that are simple matters of expertise, if only because experts within a discipline disagree with each other and because most political issues require a prudential balancing of different issues.
The COVID-19 pandemic is a case in point: A politician who wishes to “follow the science,” as the refrain goes, must first ask whether scientific experts agree with each other. They rarely do. But more important, he or she must weigh public health expertise against medical expertise. Physical health must be balanced against mental health. All these questions must be balanced with expertise from different specialties, whether economics or sociology.
A calibrated deference to expertise would recognize the inescapable fact that politics, bien entendu, must govern expertise. The prudent politician will genuinely value expertise but recognize that most political questions are too complex to be distilled to a single form of it. The tyranny of expertise and the populist dismissal of all expertise are both real phenomena. Prudence must hold the balance between them.
The simplistic demand of deference to experts also obliterates another constitutional value we should revive: variety.
All the foregoing dynamics—reflexive partisanship, obsession with the presidency, deference to expertise—work against the principle of federalism. The case for renewing federalism is the value of variety and subsidiarity combined with the danger of centralized power.
James Madison, an advocate of both national authority within its proper sphere and local authority within its, offered two arguments for federalism in The Federalist. The Madison of Federalist 39 saw federalism as a normative principle of politics that was analogous to the principle of subsidiarity. On this view, animated by the principle of self-government, local issues should in principle be decided by local majorities.
In Federalist 44 and 46, however, Madison offered a different view, what we might call “administrative” federalism. According to this view, the people were entitled to allocate authority at whatever level of government they found to be most competent. If, to take a modern example, the national government was better at hauling away the trash, there was no principled reason the people should be prevented from assigning it to do so.
Administrative federalism has generally triumphed over normative federalism. A healthier balance between the two would help renew the principles of the regime, especially republicanism. As Tocqueville noted, citizen participation in local government is more meaningful than a dissipated affiliation with national government, so federalism serves the purpose of encouraging the common good and discouraging unhealthy individualism. It also promotes variety—Brandeis’ “laboratories of democracy.” Neither political party has a monopoly on virtue here. Republicans have sought to impose their views on issues ranging from education to abortion at the national level, while Democrats have done the same. The cost is extracted in public alienation from politics.
The growing tendency to outsource political or constitutional disputes to the judiciary also threatens self-government. This has tended, but only tended, to be a progressive phenomenon inextricable from the progressive aspiration to “scientific legislation.”
Widespread deference to courts undermines self-government in the same way that inactivity atrophies muscles. A rights-obsessed culture on both ends of the political spectrum surrenders the citizen’s responsibility to undertake the political work of balancing rights, nearly all of which clash with other priorities.
That is not to say judges have no role to play in checking politics. They do. But their disposition should be deferential to public opinion as it is constitutionally registered: through elections and subsequent representation. The late-19th-century legal scholar James Bradley Thayer is held in low repute in many legal circles today. But there is more wisdom in his rule of the “clear mistake” (i.e., courts should not overturn legislation unless “those who have the right to make laws have not merely made a mistake, but have made a very clear one”) than is generally recognized.
In part, that requires the elected branches to be willing to use their ample powers to check the courts. It also requires that judges, like other constitutional officers, have a proper view of their own power rather than pursuing it to the hilt until they meet a countervailing force. And ultimately, it requires a disposition among the people to converse rather than to sue.