A Constitution of Democratic Experimentalism

Abstract

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that affect them. In democratic experimentalism, subnational units of government are broadly free to set goals and to choose the means to attain them. Regulatory agencies set and ensure compliance with national objectives by means of best-practice performance standards based on information that regulated entities provide in return for the freedom to experiment with solutions they prefer. The authors argue that this type of self-government is currently emerging in settings as diverse as the regulation of nuclear power plants, community policing, procurement of sophisticated military hardware, environmental regulation, and child-protective services. The Article claims further that a shift towards democratic experimentalism holds out the promise of reducing the distance between, on the one hand, the Madisonian ideal of a limited government assured by a complex division of powers and, on the other hand, the governmental reality characteristic of the New Deal synthesis, in which an all-powerful Congress delegates much of its authority to expert agencies that are checked by the courts when they infringe individual rights, but are otherwise assumed to act in the public interest. Professors Dorf and Sabel argue that the combination of decentralization and mutual monitoring intrinsic to democratic experimentalism better protects the constitutional ideal than do doctrines of federalism and the separation of powers, so at odds with current circumstances, that courts recognize the futility of applying them consistently in practice by limiting themselves to fitful declarations of their validity in principle. For example, conventional administrative law imposes external judicial checks on administrative agencies, obliging judges to choose between superficial scrutiny of formal proprieties and disruptive, indeed often paralyzing, inquiry into what an idealized agency might be expected to do. By contrast, democratic experimentalism requires the social actors, separately and in exchange with each other, to take constitutional considerations into account in their decisionmaking. The administrative agency assists the actors even while monitoring their performance by scrutinizing the reactions of each to relevant proposals by the others. The courts then determine whether the agency has met its obligations to foster and generalize the results of this information pooling. Agencies and courts alike use the rich record of the parties' intentions, as interpreted by their acts contained in the continuing, comparative evaluation of experimentation itself In the administrative and related settings, the aim of democratic experimentalism is to democratize public decisionmaking from within, and so lessen the burdens on a judiciary that today awkwardly superintends the every-day workings of democracy from an external vantage point. Finally, the Article reconceptualizes constitutional rights. Relying in this and other regards on ideas associated with early-twentieth-century American pragmatism, the Article treats disagreements over rights as principally about how to implement widely shared general principles. Under the heading of "prophylactic rules" and related doctrines, the United States Supreme Court has recognized that there are often a variety of acceptable remedies for a violation of rights or a variety of acceptable means of achieving a constitutionally mandated end. The authors argue for a radical extension of these doctrines, in which judicial recognition of a general, core right, permits substantial experimentation about how to implement that right. They propose institutional mechanisms to facilitate such experimentation. The authors contend, however, that with rights, as with other constitutionally entrenched principles, means and ends cannot be neatly separated, so that experimentation at the periphery also redefines the core, ultimately challenging the very distinction between core and periphery.