To Restrain Populism, Revive Federalism

We need a constitution that will bend to populist winds so that it will not break.

Classical political theory was concerned to blend both popular and aristocratic (or elitist) elements in a regime. A balance of these forces created a more stable political order. Too much populism risked chaos, gross mistakes, and wild policy swings. Too much elitism risked insularity and lacked mechanisms for self-correction. And regimes that were either too populist or aristocratic generated a destructive backlash from the group that was excluded.

Finding Balance

Classical political theory thus often built different estates right into the government, with a chamber of government that was the preserve of aristocrats and another that was reserved for the plebes. The United States lacked a hereditary aristocracy and thus its structure of government does not come with mechanisms clearly demarcated as popular or elite. But there is no doubt the Framers designed the federal government to have more elite elements than the state governments of the time.  

The Electoral College was structured to filter the popular will to elect individuals of substantial preexisting reputation. The Senate also was indirectly elected and its long terms made it more likely that the wealthy would serve. The judiciary was the redoubt of the learned profession of lawyers, representing the cognitive form of elite that was rising in importance in the Framers’ day and has become dominant in our own.

Classical political theory thus often built different estates right into the government, with a chamber of government that was the preserve of aristocrats and another that was reserved for the plebes.

States, in contrast, could be reservoirs of populism. In the critical period between the Articles and the Constitution, they had in fact often reflected populist policies.

The Constitution was designed to counteract their worst excesses through giving the more elite federal government power over such matters as interstate commerce and the federal judiciary some control over such matters as the abrogation of contracts. But our system of dual sovereignty assured that populism still had a role to play in the many areas where no institution of the federal government was given power.

Declining Power of the States

The power of states, however, has declined in our government and with it the popular element. Most obviously, the Court has been directly responsible for the diminution by interpreting the Fourteenth Amendment to override the popular moral choice of state citizens without a warrant in the text of the Constitution, most notably on matters like abortion. But it also has been indirectly responsible by increasing the role for federal preemption of state legislation beyond express preemption and clear conflicts with federal law as contemplated by the Supremacy Clause. 

The remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play.

Of course, many populist initiatives of state governments are ill-judged. But our structure of federalism allows those in other states to learn from those failures and those in the states with the bad policies to exit. It is thus far better to isolate bad populist impulses in particular states than risk a national backlash.

As it has weakened federalism, the Court has simultaneously made the federal government even more elitist by acquiescing in the rise of the administrative state, permitting very substantial delegation of both substantive and interpretive authority to a federal bureaucracy that also reflects the cognitive elite.

With the rise of populist figures as ideologically diverse as President Donald Trump and Senator Bernie Sanders, we may well be now witnessing the backlash against the elite element of government that comes from the excessive reduction of the Constitution’s popular element. If so, the remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play. We need a constitution that will bend to populist winds so that it will not break.

Reprinted from Law and Liberty.

Further Reading

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