Natural selection in our world operates through inheritance but inheritance is not necessary for this this to hold. If creatures were simply randomly popping into existence and some [were] devoured by others and some not, then we would still observe a set of creatures that looked as if was designed not to be devoured.

Why?

Because all the others would have been devoured and thus rendered unobservable.

Now that’s just not quite right. There are three components to the theory of natural selection: replication, variation, and differential survival. These three elements don’t boil down any further; you have to have them all. The key to natural selection is that differential selectors act upon diverse populations so as to change the prevalence of certain traits in successive generations of those populations. It’s not simply that the survivors are observed and the devoured are not—the evolutionary analogue of the-victors-write-the-history—but that the population’s gene pool has actually adapted to a selection environment. And as this process plays out in complex ecosystems, the result is inevitably that populations bear so many minute and intricately adapted traits that they appear to have been purposely designed to do what they do.

One of the insights of Universal Darwinism is that, in a sense, they have been designed that way, but not purposely.

Philosophical pragmatism is basically the idea that the concept of a thing is the concept of that thing’s effects (Peirce’s maxim), an idea more profound than it may seem. But I think the key insight of the pragmatists was to recognize the social basis of much of our thinking. Ideas are meaningful because they are part of our action plan in life. And much of what we do is organized in one way or another by relation to various social institutions, broadly construed. Economy, marriage, family, education, art, whatever. Our experience of the web of norms cast by these institutions is what we call, colloquially, “life.”

A pragmatist recognizes the import of socially constructed meaning, but without mistaking it for the straw man of anything-goes relativism. There is a reality independent of what we think about it, but what we think and do can play a major part in creating that reality.

All of which means that the law, a product of complex interactions of an array of human institutions, is neither totally dependent on what we, or our judges, think about it (simple legal realism), nor totally independent of what we think (natural law, philosophical realism). It is both, somewhat.

Yglesias also notes that people who don’t go to law school are invariably legal realists, which I suppose is probably true. I’d also note that, apart from the theoretically minded, high-achieving law students who go on to become law professors, practically all law students are legal realists. Which means that almost all lawyers are, too.

I’ve worked around the terminological confusion by simply boycotting the term—which is hopelessly two-dimensional anyway. Pragmatism, in law and in philosophy, captures the helpful insights of realism within a framework that is grounded in constructive and socially aware thinking about three-dimensional problems in a three-dimensional world.

[W]e have developed polarized parliamentary-style parties in a constitutional system not designed for parliamentary government. So if Congress cannot be reformed to become more parliamentary, perhaps the party system will dissolve and become more consistent with the constitutional structures we do have. Perhaps the political parties will become less polarized and less ideologically cohesive. I would not bet on this possibility happening in the short run, however. Our current political polarization is supported by many features of American politics, including the primary system, first-past-the-post rules in elections, and our current system of campaign finance.

It is worth clarifying, again, that neither the Senate’s 60-vote cloture rule, nor the campaign-finance system, nor first-past-the-post elections, nor the vast majority of the many veto gates in the federal legislative process is a feature of the constitutional design of our government. Those are all things that can be changed by statute or by a change of the Senate rules. Balkin is perfectly cognizant of this, of course. His concern is what happens if we fail to achieve institutional reforms:

Either the Senate’s rules are reformed soon, or Congress becomes increasingly irrelevant to governance. It must still pass appropriations bills, but it will be increasingly unable to direct domestic policy because neither party will be able to form supermajorities in favor of major policy changes. Earmarks and minor programs remain possible, but not major ones. And if Congress becomes irrelevant, the institution of the presidency is strengthened in the long run, whether or not Barack Obama wins reelection. If the President cannot reform Congress through political exertion, he is likely to strengthen his own ability to decide matters on his own. A strengthened Presidency moves us ever closer to rule by executive decision in American politics.

Here, I would just note that it is not necessarily the case the scope of presidential power would be augmented by congressional decline. The Supreme Court is still a potent check on the administration’s assumption of powers not granted to it by legislation. It might turn out that congressional decline would only result in more administrative independence, without congressional guidance. That might lead to accretion of executive power in many areas, but it would not leave the President a free hand to simply tackle health care, climate change, and financial reform all on his own. The relevant regulatory agencies do not necessarily have the authority needed to craft policies adequate to these undertakings. And in many areas, power left derelict by Congress will devolve to the states, rather than to the administration.

[U]sing reconciliation in this case will not fundamentally change the dynamic in the Senate, and it will probably not significantly alter constitutional understandings. We will still have polarized parliamentary style parties in a constitutional system that is not designed for parliamentary government because of its super-majority rules and many different veto points. In an important sense, this is the larger structural problem. The party system has mutated in ways that are inconsistent with existing constitutional mechanisms.

If reconciliation fails, Obama will have to attack the filibuster directly. But even if reconciliation succeeds, the constitutional moment will not have been concluded. The worst, I fear, is yet to come.

Here Balkin is alluding to Bruce Ackerman‘s theory of transformative “constitutional moments,” times of political crisis in which the electorate acts collectively to effect constitutional change through informal, extra-constitutional means. In the current context, Balkin is using the idea to describe a potential confrontation between the President and the Senate over the Senate rules. Those rules live behind the constitutional forcefield of Art. I, § 5, a bulwark for the separation of powers, and an inter-branch confrontation over them could be understood as a constitutional moment akin to FDR taking on the Supreme Court with the court-packing scheme.

I’m not wild about Ackerman’s theory, but I do think it supplies a useful vocabulary in which to frame the historical interplay between politics and constitutional law. The theory is meant to explain the great paradigm shifts in constitutional interpretation that occurred at crucial points in our history: reconstruction, the New Deal, and the civil rights era. For example, under Ackerman’s theory, the constitutional standoff between New Dealers and the Lochner era Supreme Court was resolved by the decisive action of the electorate who sided with the liberals and re-elected FDR with overwhelming support, thereby “ratifying” the New Dealers’ more expansive vision of congressional authority to intervene in the national economy.

The term “constitutional moment” can be useful for historical description—it’s certainly true that there was a kind of jurisprudential paradigm shift in the mid-Thirties, as the Supreme Court broke with old-guard doctrines like the freedom of contract—but I’m not sure Ackerman’s theory achieves much beyond that. In its strongest form, the theory ascribes to these epochal constitutional realignments a force equivalent to that of formal, Article V amendments to the text. An obvious problem here is this: how are you supposed to know when a constitutional transformation has occurred? And how are you supposed to resolve disagreements about the scope of such a transformation? When voters “speak” at the polls, the final tally of their votes does not in any obvious way translate into well-formed propositions of law. There are other criticisms—and plenty of rejoinders to them, I’m sure—but I’ve already taken this detour too far.

I’ll follow up with more thoughts on Balkin’s post later.

UPDATE: Made some needed clarifications suggested by Lee’s comment. Lee is right, of course, that the rules of congressional procedure involved in the filibuster and in the budget reconciliation process are not derived in any way from the Constitution. The point here though is not that these specific political disputes are about constitutional issues, but that they implicate the balance of powers among the branches in a constitutionally significant way. Changes above should clarify that.

Except politics is a zero-sum game. [...] Democrats lost from [Sen. Evan] Bayh’s retirement and Republicans won, which is why they’re celebrating.

Now, public policy isn’t a zero sum game. But to expect politicians to put aside their political interests for the good of the country is wildly unrealistic. A well-designed system is supposed to align politicians’ interests with the greater good, to the highest degree that’s possible. The best way to do that is to give the majority the power to implement its agenda in the belief that this agenda will create positive real-world conditions that the voters choose to reward it with continued support. You can’t count on the minority party to lay down its most powerful weapon so that the majority party can rack up bipartisan achievements.

The belief that the filibuster is okay, but minority parties should just use it less often and start acting nicer is the equivalent of the belief that the financial system was totally fine, there just needs to be less greed and more caution. Of course, there are people on Wall Street who believe that, too — you don’t need to change the incentive structure that rewards taking on systemic risk, they say, you just need people to listen to their better angels. This sort of misguided notion is probably endemic to people who sit on the inside of any institution and see it in personal rather than systemic terms. The belief among official Washington that moral restraint can persuade politicians from ignoring their political interests is exactly such a fallacy.

I don’t think it makes much sense to treat institutional problems with anything less than institutional solutions. You can change the rules of the Senate, or you can change the two-party system. Good across-the-aisle relationships among individual senators will not reliably produce bipartisanship unless undergirded by systemic forces (like southern racism in the mid-20th century) strong enough to outweigh partisan ideology on election day.

Many critics of the Democrats’ health reform plan think we need to radically shake things up—drastically cut spending; restructure incentives for both consumers and providers; end the employer-based insurance system; institute single-payer over night; etc. Matt Yglesias chastens proponents of the Wyden-Bennett approach (which would end the tax exclusion for employer-provided health benefits) for excesses in this vein:

Wyden-Bennett fans in the commentariat…have developed a habit of massively understating the transformative potential of the Obama administration’s health care proposals. It’s true that Obama shies away from a Wydenesque sudden shock to the employer-based system. But Obama does that because even though journalists and think tankers tend to favor such a sudden shock the public hates that idea and is terrified of it and nothing any politician says is going to change that. What Obama’s plan does accomplish, however, is to set the stage for a phased transition to a system in which employers are cut out of the loop.

Shock-and-awe punditry is entertaining and useful for framing issues in public discourse, but the responsibility of actually governing changes how policy is evaluated, as feasibility conditions and dynamic public attitudes feed back into the substantive development of the policy. This amounts to a kind of political Heisenberg effect, whereby public perception of a policy may alter its substance and its merit as policy.

The upshot is that, even when radical change is called for, phased transitions are really the only prudent course.¹

1. Probably.

The framers worried about democratic government working in a country as large as this one, and it’s possible that we’ve finally reached the unmanageable tipping point they feared: Maybe our republic’s constitutional operating system simply can’t scale up to deal satisfactorily with a heterogeneous population of 310 million. When the Constitution was written and the Senate created, there were around 4 million people in America, or about one senator for every 150,000 people. For Congress to be as representative as it was in 1789, we’d need to elect 2,000 senators and 5,000 House members. And so I wonder, as I watch Senate leaders irresponsibly playing to the noisiest, angriest parts of the peanut gallery, if the current, possibly suicidal spectacle of anti-government “populism” in Washington isn’t connected to our bloated people-to-Congresspeople ratios. As the institution grows ever more unrepresentative, more numerically elite, members of Congress may feel irresistible pressure to act like wild and crazy small-d democrats.

(Emphasis added.) Ezra ably dispenses with Andersen’s odd take on senatorial temperament. But Andersen’s ultimate suggestion here is that the problem with American democracy is that America is too big for the constitutional design. And that thesis fares no better.

Some of the framers did worry about effectively governing a country so large. But a crucial argument of the Federalist Papers (No. 10, by Madison) was that the greater size and diversity of the country would actually increase the stability of the government by decreasing the sway of factions and local interests over the general government. The size and heterogeneity of the nation were in fact integral elements of the intended design. The one concern about the scalability of the design was the danger that reps would become too detached from the varied experiences of their constituencies when those constituencies become too large for any one representative to know and understand.

As for our own experiences, it’s really hard to make much sense of the notion that the dysfunctions of Congress are the result of a defective scale of representation. It is not the size of the country that causes congressional failure to enact legislation that suits majority preferences. It is malapportionment and supermajority rule in the Senate.  The former is not a departure from the framers’ design, but the realization of it. And the latter is a consequence of the Senate’s own rules. Those rules may be crazy, but they’re not small-d democratic.

1. The argument from intense minorities

The first argument, summarized here by filibuster expert Greg Koger, takes aim at simple-majority rule for inadequately accounting for the quality of support for a measure, rather than just the quantity of votes for it. Koger:

For some policy questions, some voters have a deeper stake than others. Last November, Californians voted on whether to allow same-sex marriage; isn’t it fair to say that people in same-sex relationships had a deep, personal stake in the question while heterosexual voters had an abstract (and typically less intense) interest in the issue? In a perfect world, we might recognize this asymmetry and attach special weight to the preferences of intense voters.

This is pretty much on a par with other anti-majoritarian arguments. There’s certainly a healthy strain of this thinking in constitutional law, where supermajority requirements can be justified as entrenched protections of minority rights. In general, I’m really not sure there’s a content-neutral way to resolve the debate. That is, such arguments tend to be dependent on evoking your sympathy for the minority. But flip the status quo to favor an unsympathetic minority (like Jim Crow racists), and the supermajority requirement doesn’t look so good anymore. (The First Amendment context is different, because, you know, that whole thing about sticks and stones….)

There’s a lot more to it, but I’ll just say this: I’m deeply skeptical that there could be an even remotely satisfying, policy-neutral justification of supermajority requirements.

I suppose there would be more to say for this view had the filibuster not evolved (as it appears to have now) into a straight supermajority requirement. If the process allowed for differentiation of substantive policy-based obstruction and partisan politics-based obstruction, then resorting to a filibuster might reflect intensity. Maybe. But surely there is not inherent democratic value in the intensity of views per se. It is only intense views that are “right” or “just” by our standards that deserve protections that depart from majoritarian norms.

2. The argument from malapportionment

The second argument, offered by Ben Eidelson at Slate, posits the filibuster as a democratic corrective against the inherent malapportionment of the Senate. Eidelson finds that the filibuster often serves to enforce the preferences of electoral majorities.

In fact, in 40 percent of the filibusters since 1991, the senators making up the “obstructionist” minority represented more people than the majority they defeated.

The traditional debate over the filibuster—which equates filibustering with a minority veto, and then argues the merits of giving the minority such a prerogative—entirely misses this fact. Democratic filibusters against President Bush’s judicial nominees were decried as undemocratic usurpations, for example. But nearly all of them fell into this category of “majority rule filibusters.”

I guess that makes this argument a Democratic corrective as well as a democratic corrective. But the obvious problem is, again, there seems to be no way to distinguish in principle between good and bad filibusters. They might correct malapportionment, or make it worse. I’m willing to live with the constitutional bias against electoral majorities if we can get rid of the excessive institutional ones like the filibuster.

The data show that when the president is more popular, Congress tends to be more popular and when the president is less popular, Congress tends to be less popular. Moreover, this is true even when Congress and the presidency are controlled by different parties.
* * *
Discontent with Congress does not lead to a general tendency to kick out incumbents. Occasionally voters do get upset and give the boot to a large number of incumbents—but they almost always take out their dissatisfaction on the members of only one party—the president’s party.
* * *
This brings up the most important point about evaluations of Congress. They have very little influence on how Americans vote in congressional elections. When it comes to choosing candidates for Congress, it is opinions of the president’s performance that matter.

This, I think, suggests that the accountability crisis I’ve been harping on should be especially intense when the majority party in the Senate also holds the White House—because then the Senate minority has the greatest incentive (assuming they grasp the implications of this dynamic) to grind the legislature to a halt, because gridlock will be bad for the President’s party. Conversely, the minority should think twice about obstructionism in Congress if it holds the presidency.

Would that mean that congressional majorities are in a stronger position when their party is not in the White House? I seriously doubt it. In that situation the minority party holds the ultimate weapon of obstruction: the presidential veto.