Democratic Mists

Anthony Sanders · April 20, 2022

I wrote an essay that the online journal Liberal Currents recently published which readers of this blog might enjoy. I argue that both democracy and the thing many believe it’s supposed to measure, the “Will of the People,” are fundamentally indeterminate. Democracy itself comes in a variety of forms, and measuring the people’s “will” is a hopeless task. I apply these conclusions to something that’s frequently discussed in constitutional law these days, the nondelegation doctrine, and argue that both those in favor of and against a stronger version of the doctrine are using flawed analysis. Instead of discussing whether the doctrine supports “democracy,” judges should interpret the Constitution without worrying about the people’s “will.” This can then apply to all kinds of other constitutional law, where judges practice judicial engagement and don’t go chasing butterflies (my metaphor for thinking the popular will on various issues can be measured).

Feel free to read the whole thing. Here’s a snippet:

The idea that we can accurately measure the “Will of the People” pops up in a lot of areas, but this essay only scratches the surface of one of them. It’s something lawyers call the “nondelegation doctrine.” It is notable because it’s a constitutional issue where both its proponents and opponents appeal to “democracy” and its ability to measure the people’s “will.” Thus, looking at this particular debate serves as a case study of how what I’ll call the “butterfly fallacy” warps how we view the United States Constitution and how judges interpret it. My hope on reporting on these contemporary debates and peeling back their assumptions is that we can better understand both why democratic government is vitally important, but also the constitutional limits we rightly place on it. If nothing else, I wish to convince you of one thing: Like the democratic nature of Tony Blair’s 2005 government, the “Will of the People” is fundamentally indeterminate. And perhaps I’ll further convince you that this means judges should more fully engage with the Constitution instead of worrying about what “the people” really think.

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