Purdy defends democracy, urges vigilance in latest book

In his new book, Two Cheers for Politics: Why Democracy is Flawed, Frightening — and Our Best Hope (Basic Books, 2022) Professor Jedediah Purdy examines the challenges of a political system that many consider to be under threat and others deem a disappointing failure. Purdy, the inaugural Raphael Lemkin Professor of Law, discussed the book, his seventh, with Lisa Kern Griffin, the Candace M. Carroll and Leonard B. Simon Professor of Law and Senior Associate Dean for Faculty & Research at an event sponsored by the Goodson Law Library on Nov. 1. “The book tries to take those misgivings really seriously, and also to take seriously the idea that democracy is our best hope in politics, and that we need to do it better and not run away from it,” Purdy said.

Purdy, a leading scholar and teacher of environmental, property, and constitutional law, as well as legal and political theory, rejoined the faculty in July from Columbia Law School, where he had been the William S. Beinecke Professor of Law since 2019. Having spent the previous 15 years at Duke where he held the Robinson O. Everett Professorship, Purdy told Griffin that his decision to return to the Law School, and his family’s return to Durham, “was a decision about the importance of community and place and personal history in our lives.”

The following is an edited transcript of their conversation, which focused primarily on Purdy’s proposals relating to constitutional law.

LISA GRIFFIN: Practically speaking, when you talk about politics and how it can be constructive, and democracy and what we should be aiming for, what do you mean by those terms?

JEDEDIAH PURDY: The book’s title is about politics, and not about democracy, because in a sense, to believe in democracy you have to have a clear idea of politics, of what the domain is, the area of questions that democracy addresses.

I put it this way — there’s a set of decisions that we can’t avoid making because they set the terms on which we live together. And as long as we are stuck living together, which people always, everywhere are, we can either make these decisions explicitly, or we can pretend we’re not making them, which is a way of making them without acknowledging it.

What are these decisions? Among other things, they’re the decisions that the curriculum of the first year here gives you some of our working answers to. They are the principles of property law. They tell you who has what, who can do what, who doesn’t have, how did that happen.

We can’t avoid organizing the world in some of the ways that property law does, to answer the question that unavoidably arises when people are in the same space, which is, what can I do with that? Can I have that?, and so forth.

We have the same sort of questions in constitutional law or in criminal law. How is your body protected? How is your body vulnerable? What happens if someone crosses the threshold that’s supposed to be protected? All of these questions are fundamentally specifications of how we’re going to live together. And we have to answer them one way or another.

“If we ask ourselves, what’s the authority of constitutional principle, why is the Constitution the last word, we might start by taking seriously its first words, ‘We, the people.’”

Jedediah Purdy

We know the Supreme Court made decisions on this last term. Police make decisions about this every day, for worse and better, and so on. Answering these questions is what the institutions of the law are always doing.

What’s the point of saying that’s politics? Well, being for democracy as a political concept doesn’t mean you want voting on everything. I don’t want voting on what’s the best novel of the 20th century — at least, not a vote that’s going to bind everyone based on how the vote comes out. But with the questions I’m calling political, we all have to live with the answer. You don’t actually get to pick your own answer. And it’s for that reason — that the answer, by its nature, binds all of us — that I think the best way of deciding these questions is the democratic way.

LG: There is an enormous amount of trust that you are willing to place in your fellow democracy dwellers throughout the book. And it is a leap of faith to come along with you on that trusting premise. Should one do that, the next step, in your view, is a sort of every-generation constitutional revision. Can you say first why you think the Constitution itself is getting in our way, what’s counter-majoritarian about it?

JP: A lot of people have become vividly aware that the Constitution has a number of structural features that are counter-majoritarian, in my terms, counter-democratic.

The electoral college has given the presidency to the loser of the national popular vote twice in this century, and almost did it a third time in 2020. That’s the Constitution, in its electoral college dimension, working for us. The unrepresentative character of the Senate is also notorious. There was an idea for a long time that we didn’t have to think very hard about what democracy was for a couple of reasons. One was that whatever it was, it seemed like we had figured it out. And our set of institutions seems to be approximating it pretty well.

The other thought was that we might not have to think about it very hard because it was probably where the whole world was trending. There was the thought that everything ran in one direction, and everything tended to become us. And what we were was pretty stable and was working pretty well. It’s the cracking of all of that expectation that’s part of the backdrop that the book is written against. And that’s, among other things, forced our attention to the ways that our system is actually counter-democratic.

Being counter-democratic is particularly a problem if the constitutional features we’re talking about, like the electoral college and the Senate, provide the conditions of possibility for an anti-democratic politics — that is, for the minority rule strategy of national political control, where you can take control of the Senate, and you can take control of the White House, and you can take control of the Supreme Court without actually winning national majorities. And the fact that that was the strategy that worked for Trump and for Trumpist politics in the last five, six years makes really vivid what kind of problem we have, not least because it rewards a politics that doesn’t actually try to build national majorities, but rather to frighten and mobilize selected minority votes.

LG: Your idea that issues that need to be put to majority vote are being decided by nine people is something that I think is very much at the heart of what you’re talking about in the book. So let’s talk about the Court.

JP: If we ask ourselves, what’s the authority of constitutional principle, why is the Constitution the last word, we might start by taking seriously its first words, “We, the people.” It presents itself as an act of fundamental lawmaking, that is, an act of constitution-making, that is performed by the people who will live under its principles and do it with the purpose of enabling themselves to live better under its principles.

I think that’s the best foundation for a constitution — a commitment by the members of the community who will live under its rules and principles to those being the ones that will guide and constrain them. I’m all for the constitutional entrenchment of fundamental decisions about rights, and equality, and limits on institutions. But I think that the further those decisions get away in time from the people who live under them, the more uncertain and manipulatable their meaning becomes, the more the content of those constitutional principles becomes unavoidably a question of interpretation rather than a question of decision. And I think one of the most powerful things about the idea of a constitution is actually the idea that it is the most democratic decision in the system, and that it is authorized in its principles by the people who will live under it.

I suggest a thought experiment, which is what if every 27 or 30 years — basically every generation — you knew that there were going to be a convention or series of conventions, maybe regional, then national, structured in a variety of ways to be genuinely and deeply representative and deliberative, from which some proposals might emerge to change the Constitution? They might not. The answer might be, “Everything’s fine here.” But some proposals might emerge to change the electoral college, to change the representational structure of the Senate, to reverse Dobbs, perhaps. None of these would be surprising. To reverse Citizens United and the underlying line of decisions back to 1976 that anchor it also wouldn’t be surprising.

Then those proposed revisions would go to a national referendum. That national referendum would be, under the current system, the only direct act of a national majority in our constitutional system. National majorities do nothing else, since they don’t elect the president, and we don’t otherwise vote nationally.

The Constitution that we then lived under for the next 30 years would be, I think in a real sense, the one that we had decided to live under. It would give marching orders to judges. But those marching orders would be, in some ways, significantly more constraining, I think. Because the interpretation that followed would be in light of decisions in living memory. The originals, as it were, of originalism, would be us.

LG: The Constitution itself is quite strict about how it is to be reconsidered or amended. And you suggest that one of the first things we need to do is change that.

JP: The Constitution is very hard to amend. Article V, the amendment article, sets up a series of high hurdles. And the hurdles are structured in a federalist fashion so that amendments, when approved, have to be approved state by state. And it doesn’t take that many small or large states, it doesn’t take that many states, it doesn’t take that much of the population to block any amendment. I suggest you start by amending Article V.

At least part of the reason it’s so hard to amend things, including Article V, is that our political culture, our movements and reform efforts, and our elite political consciousness, have all been totally turned away from the idea of explicit change of the national Constitution for decades. And what you don’t think about, you definitely won’t do.

They’ve changed the Constitution in quite basic ways before using Article V. The Senate used to be entirely appointed by state legislatures. The 17th Amendment was passed through three quarters of state legislatures. That is, they got the very people who were giving up the power to appoint the senators, which was a powerful source of patronage, among other things, to give it up. How? Partly by defeating a bunch of people who had opposed the effort to pass the amendment a cycle earlier. So you actually can mobilize people with electoral effect around constitutional change of a structural kind. It’s not out of the question, even with Article V. History gives us an existence proof.

LG: There is an unfailing optimism about the way that you express yourself, the things that you choose to write about, and what you imagine to be possible. How do you do that?

JP: If there’s an optimism in the book, it’s not because I particularly expect that things are going to go really, really well. I’d say, rather, it’s rooted in a political and intellectual judgment. And that judgment is the following: that to the extent that we live with institutions, live under institutions that give us the potential to revise our world, our lives for the better, we have a responsibility to take seriously, put weight on, call out and try to get as much as we can from the aspects of those institutions that let us do that. I think there’s a kind of practical optimism or a practical hopefulness that is actually what I think of as the heart of civic responsibility. If institutions that you have despaired of will not do anything good, institutions that you are demanding more from than you may think they are capable of are the ones that might produce something surprising.

So I try to think about what a kind of troubled idea like patriotism could mean in this world, I think of it as meaning, on the one hand, that all the wrongs and the harms and the crimes, as well as the achievements of the country that you happen to be caught in or that you’ve chosen, are partly your responsibility. They’re partly on you regardless of whether you have any personal implication in them.

And second, you have a responsibility to try to keep active, and make real and make better the aspects of that system that can actually reform it, to repair and remedy and move beyond some of those harms, and make it more genuinely democratic so that it could be a system that actually deserves a higher degree of loyalty than you might think, or a higher degree of attachment than you might think that it does now. So that’s the kind of judgment that’s behind a certain kind of constructiveness in the book, maybe because it’s easy for me, temperamentally, to despair. And I think I’m not alone in that these days. The book is interested in the reasons that we shouldn’t.

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Spring 2023
Volume 42 No. 1