by Adrian Vermeule. New York and Oxford: Oxford University Press, 2007. 272pp. Hardcover. $49.50/£29.99. ISBN: 9780195333466.Reviewed by Albert P. Melone, Professor Emeritus, Department of Political Science, Southern Illinois University Carbondale. Email: almelone [at] mchsi.com.
pp.69-72
For those scholars and political practitioners who reject proposals for wholesale change in the present US Constitution and instead are looking for moderate alternatives to improve the present order will find this book by Harvard law professor Adrain Vermeule worthy of study. Indeed, a careful reading is required of this well written but complex work, complete with conditional statements, anticipatory rebuttals, and economic jargon most familiar to rational choice, game theorists, and aficionados of law and economic jurisprudence. Happily, the author is eclectic in his application of these paradigmatic models as he tackles the problems he hopes to ameliorate.
Vermeule does not employ mathematical formulae and large-scale data sets that empirically test his arguments, instead identifying institutional variables that are arguably central to democracy. He then proceeds to indicate how, through small-scale changes, each of these may be enhanced to promote greater democracy. This requires description, prescription, and an intricate and fascinating intellectual balancing of tradeoffs among what he regards as central democratic mechanisms: impartiality, accountability, transparency, and deliberation. Clearly, a reform minded intellectual, he repeatedly makes the claim that his small-scale approach is preferable to large-scale institutional change because it is less costly, but more predictable, and more amendable to acceptance by political actors. Vermeule is dismissive of those who might counsel waiting upon the reconcilement of competing views of democratic theory before proceeding to reform. He sets out with the assertion that most democrats will respond favorably to reform proposals if each comports with their preferred notions of democracy and that marginal and optimizing tradeoffs are essential byproducts of the process.
The nomenclature chosen by Vermeule to encapsulate his central democratic mechanisms are for the most part easily recognizable as part of the existing literature and public discourse. His first, however – impartiality – requires more. Vermeule admits that he wishes he could find a more definitive word than impartiality to encapsulate his thought. He means by impartiality that public officials ought not to act in ways that promote their self-interest. Rather, they should be public regarding. It may help readers to comprehend what he is getting at if they recollect lessons from classical political theory and the debates on the adoption of the Constitution. I suppose the author rejects starting from the beginning of political thought because, as he writes, using a term such as public spiritedness may distort his purpose. Yet, I think, the classical approach is more illuminating. The Roman concept [*70] of virtue and found later in Machiavelli’s DISCOURSES and expressed elegantly by James Madison in 57 FEDERALIST is on point – to wit, the object of every constitution is to find rulers who “possess most wisdom to discern, and most virtue to pursue, the common good.” Madison goes on to argue that a republican form of government is the best mechanism to keep officials from serving their own self-interests or those of particular factions in society inimical to the public good. Vermeule is proposing to patch holes in the extant ship of state without altering basic structures, and in this sense, his work is really part of a grand intellectual tradition in pursuit of the goal of a good, as opposed to a bad, democracy. Vermeule skillfully deflects attention away from macro-fixes by explaining his focus is limited to creating veil rules that will promote impartiality. Well then, we might ask, borrowing his own sailing metaphor, does he succeed in patching the constitutional ship of state?
The author defines a veil rule as a mechanism that curbs self-interested behavior. Such rules work, he argues, because political officials are uncertain about what particular decisions are likely to result in some benefit to them personally. Suppressing information is thus one way to encourage political actors to behave in public-spirited rather than selfish ways. But Vermeule argues that attempts to offer such reforms are difficult to implement because of the tradeoffs with other political goods. He is particularly critical of the Crampton and Carrington (2006) proposal to limit the tenure of Supreme Court justices to a fixed number of years and of Bruce Ackerman’s (2006) framework proposal for the implementation of prospective emergency legislation that would protect civil liberties. No doubt, Vermeule is correct in pointing out that self-interested motivation and institutional factors discourage the creation of new veil rules other than those already in the US Constitution; he cites prohibitions against Ex Post Facto Laws, Bills of Attainder, as well as the Twenty-Seventh Amendment, and the Emoluments Clause. In fairness, Vermeule cites one proposal to create legislative redistricting plans that would delay implementation for two or three election cycles as an example of an impartiality mechanism that may work. Yet, it is difficult to conclude after reading Vermeule that we can be terribly optimistic about reforming politics through the imposition of additional impartiality rules. As brilliant as Madison’s 10 FEDERALIST is as an argument for encouraging impartiality, over 200 years of constitutional history demonstrates the need for fundamental – qua macro – and not patchwork – qua micro – change. This is particularly true because of the difficulties in creating impartiality mechanisms that can avoid the pitfalls that Vermeule describes.
The author is in fundamental agreement with anyone doubting that impartiality alone is a sufficient condition for democracy. Leaders must be accountable to the citizenry if something more than a benign dictator is the goal as a constitutional order. Though accountability as an abstract concept is a matter of consensus with many variations on the theme, Vermeule argues what counts are ways to operationalize the concept as a democratic mechanism on the ground. Yet, he insists on bashing the widely held belief that the delegation of [*71] legislative authority to administrative agencies represents a serious accountability problem. Despite his claims that it is a “bogus” (p.175) concept, I trust that more persons than myself will be unpersuaded that delegated power may be redelegated without presenting serious accountability problems stemming from the vesting clause found in Article I of the Constitution and the more general principle of separation of powers. Yet, I must admit that many readers will find Vermeule’s extensive argument intriguing and worthy of consideration. I hope that it will move doubters to write serious rebuttals. Regardless of where readers may come down on the nondelegation argument, Vermeule presents some very interesting and thought provoking ways to improve accountability within the extant constitutional system.
Among the author’s accountability enhancing suggestions are submajority voting rules for procedural and agenda matters in legislative settings. He devotes almost an entire chapter to circumventing the strategic behavior of minorities from frustrating the will of majorities by implementing absolute majority voting rules. He also demonstrates how conjoining submajority and absolute majority rules may optimize the goal of accountability. Critical of the legal fraternity for its tendency to afford judges considerable discretion to restrain their policy making tendency through reliance on principles of judicial self-restraint or what political scientists call the judicial role, Vermeule raises the prospect of thinking instead in terms of institutional voting mechanisms. His option of hard rather than soft solutions includes a supermajority to declare statutes and actions unconstitutional and to reverse existing precedent. Instead of the Rule of Four, Vermeule suggests the recasting of certiorari grants to reflect a different set of costs and benefits. Another suggestion is that supermajorities might be required for senatorial voting on presidential appointments to the bench and other offices. No doubt, we should carefully scrutinize all of these suggestions because each possesses important political consequences involving winners and losers. But Vermeule’s challenge that offers hard rather than soft fixes to the constitutional system clearly demonstrates that this book is not just another defense of the status quo. He is intent upon offering fresh and helpful approaches to systemic problems.
Impartiality and accountability are necessary but not sufficient conditions for a successful democracy. Vermeule argues persuasively that deliberation and transparency must be part of the mix. Both, however, possess what he terms good and bad consequences. Decision makers must freely exchange views if the results of deliberation are to be fruitful and if legislators, for example, are able to consider fundamental constitutional issues that arise in the lawmaking process. How this may be accomplished is a subject of an entire chapter that includes specific recommendations. Vermeule rejects both public-choice and realist theoretical views of explaining legislative behavior in favor of the more nuanced explanations of political scientists such as Richard Fenno (1973) – most legislators pursue many ends at the same time and are willing to trade off one goal for another depending upon circumstances. [*72]
Transparent decision-making is a necessary condition for holding public officials accountable. Yet, Vermeule subscribes to the view that government may legitimately conceal from public view certain facts, for example, national security matters. Too much transparency, Vermeule argues, leads to grandstanding and threatens meaningful deliberation. He suggests the creation of micro-mechanisms that permit relative secrecy at the beginning of the policy making process in ways that delay revealing to interest groups and to the broader public legislators’ actual decision making. When is the right time to reveal such processes are not always clear, and as the author freely admits, “the devil is in the details” (p.207).
The suggestions for creating micro-mechanisms with respect to deliberation and transparency particularly are likely to raise many objections. However, this tends to emphasize Vermeule’s major point that tradeoffs are inevitably a consequence of all proposals for improving operations within our present constitutional system. Political scientists with a bent toward reforming the political system will find this book replete with challenging proposals requiring serious critical analysis. Academic lawyers without a grounding in empirical political science should find Vermeule’s use of the social science literature revealing and worthy of emulation. Though the trend has a history, it is becoming increasing clear as this book attests that the transmission of knowledge across academic boundaries is proceeding at a rapid rate and that social scientists and academic lawyers are finally learning from the other without needless peripheral and licensure obstructions.
REFERENCES:
Ackerman, Bruce. 2006. BEFORE THE NEXT ATTACK: PRESERVING CIVIL LIBERTIES IN THE AGE OF TERRORISM. New Haven: Yale University Press.
Crampton, Roger C., and Paul D. Carrington. 2006. REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES. Durham, NC: Carolina Academic Press.
Fenno, Richard F., Jr. 1973. CONGRESSMEN IN COMMITTEES. Boston: Little Brown.
Rossiter, Clinton (ed). 1961. THE FEDERALIST PAPERS: ALEXANDER HAMILTON, JAMES MADISON, JOHN JAY. New York: New American Library.
© Copyright 2008 by the author, Albert P. Melone.
