How does Publius’s treatment of politics in The Federalist measure up as “political science”? On one hand, the purpose of the essays was more polemical than scientific. The Federalist sought to persuade New Yorkers to adopt the proposed Constitution rather than to evaluate it from an entirely dispassionate stance. Yet Publius’s rhetorical method necessarily required predictions about the ways in which the new institutions would work. The Federalist necessarily made use of positive (empirically based) political science to ground normative political arguments to defend the novel constitutional scheme.

This chapter explores ways in which financial emergencies are dealt with by modern governments, by which I mean political/legal systems that constitutionally protect rights and privileges. The key feature of such systems, from my perspective, is that they can be slow to react to shocks, even those that destabilize the government or threaten the whole legal regime. A financial emergency is, arguably, an example of such a shock.

INTRODUCTION

Modern democracy is normally conducted by elected representatives, chosen in competitive elections (where incumbents have a chance to lose). From the standpoint of the voters, elections are the (thin) connecting line between what voters want or will accept and the policies chosen by their government. But this is so only to the extent that elected officials can actually lose elections and are not able to so exploit the advantages of office as to insulate themselves from voters. From the standpoint of elected officials, elections are a matter of political life and death. To survive and have their policies persist, they have to win or at least win pretty often. Therefore, policies are chosen, in part, because officials think will help them prevail next time. One cannot of course expect governments to be very good at figuring which policies will have this effect. The connection between policies and the outcomes voters care about is complex and obscured by risk and uncertainty and, in many cases, very weak. Moreover, modern democracies are internally complex with separated powers and internal checks, making coordination on policy difficult and sometimes impossible to achieve (despite the invention of the political party). So governments get things wrong fairly often either because they cannot figure out what to do, or, cannot do actually manage to do what they know they should do. And, as a result, as long as elections really are somewhat competitive, sometimes governments lose elections.

For all its flaws, the traditional democratic conception is usually defended nowadays in the following way: the policies that work electorally are those that tend to produce good outcomes for voters. And elected officials are thought to be at least somewhat competent at finding such policies and so can be (rationally) expected to pursue them in between elections. So, even if there is a bit of noise (i.e., failed policies, electoral defeats, etc.), and even if the election motive distorts policies a bit toward short run electoral concerns, and even if electoral worries can make it hard for representatives to coordinate their actions, on balance democracy usually tends to produce outcomes acceptable to the electorate.

Republican political theory has been thought to have distinctive implications for law and especially for constitutional institutions and practices. A republic is supposed to pursue the common interests of its citizens and for that reason republicans have usually opposed rule by narrow groups such as monarchy or oligarchy, which would be tempted to pursue narrower objectives. Traditionally republicans have also usually opposed democracy, too – especially direct democracy of the kind practiced in Athens – on the ground that rule by a majority is a form of despotic or lawless rule. Republicans have also tended to be suspicious of liberalism because of its emphasis on private goods rather than public projects and its deprecation of duties and of shared or public interests. Nowadays, however, many republicans argue that republicanism actually requires a commitment to certain kinds of “democratic” institutions and to deliberative practices, and they see some version of democracy as consistent with assuring robust liberal protections for individual freedom.

Philip Pettit, for example, argues that law, even though it compels and coerces, is or can be emancipative for individuals. By reducing the domination of some by others, it can increase the amount of liberty or freedom enjoyed by the individuals in society. Moreover, he argues that the legal system can be so arranged, constitutionally, as to limit domination by governmental officials while permitting it sufficient power and purpose to restrain private actors from dominating others.

One could think that the move from authoritarian rule to parliamentary democracy would be generally favorable to legality. There are certainly many cases of authoritarian rulers who have seen courts and legal processes as threats to their powers and insisted on subservient judges, willing to permit lawless actions as required. However, not every authoritarian regime has been hostile to legality and independent legal institutions. Indeed, Steven Holmes has argued that law and independent judges are often in the interest of authoritarian as well as democratic rulers because they permit the upward flow of information valuable to maintaining stable rule.

Whether that is so or not, it seems clear that the transition away from an authoritarian regime, insofar as it entails a break in the old legal order, can undermine the establishment of genuinely legal institutions. Many of the laws might be either new or, if old, of questionable pedigree. There may have been special deals or pacts – necessary to disband the old authoritarian system – aimed at protecting certain traditional elites from legal rules that apply to others. Moreover, judges might well have continued or at least been trained under the previous regime, so they may not have earned or deserved a high level of trust. One could hope, however, that as democratic or liberal institutions become more established, these conflicts would fade away. Perhaps; but the chapters in this volume provide reason to think that there remains a significant tension between law and democratic rule and judges are sometimes placed in a position where they must negotiate these difficult issues.

This chapter specifies the institutional conditions for an autonomous judiciary. It seeks to address the question, when will judges act independently of elected officials? Although scholars agree that judicial autonomy is an essential condition for the rule of law in presidential systems, no consensus exists about the circumstances under which it occurs. We argue that when the executive and legislative branches are united against the courts, the courts have few resources with which to defend an independent course, which may include arbitrating interbranch disputes and upholding rights. In contrast, when significant and sustained disagreements arise among elected officials – such as take place under divided government – judges have the ability to challenge the state and sustain an independent course, with little fear of political retribution.

We seek to demonstrate that a country's position on the judicial autonomy continuum depends on more than so-called parchment barrier guarantees of life tenure (or some other long-term length) or protections against salary reduction. Informal practices that allow elected officials to control the courts often overshadow formal (constitutional) guarantees of judicial independence. Institutionalized subconstitutional practices can shape the incentive structure facing judges so that they are unlikely to oppose government policies. These subconstitutional practices can include withholding funds from the judiciary, imposing limitations on the jurisdiction of the courts, or instituting more drastic measures such as removing judges and court packing. Unified government permits the president and congress to employ these practices or to threaten to do so to subordinate the courts.

Introduction

A modern democracy is conducted by a small body of elected officials who make the laws and control the state. This fact has been taken by some to mean that modern democracy is really a kind of elite rule. In its strong form, this claim implies that modern democratic governments pursue the interests of an elite or aristocracy; the weak form claims no more than the evident fact that government is run by a relatively narrow class of people and leaves open the question of whose interests may be served by this arrangement. Strong form elite theorists do not necessarily reject the possibility that the people may have some influence in picking and choosing which parts of the elite class control government. But they typically stress how weak and ineffective such controls are, especially when it comes to getting the elite to pursue public interests. If public interests are served, on the strong account, they are served gratuitously, by leaders who happen to be publically motivated, and not because of any strong incentive leaders may have to govern for the people.

Versions of the elitist view were stated by Schumpeter years ago and have been developed in various ways by Przeworski, Manin, and Dunn. The emphases of these theories vary quite a bit but all concur in seeing elections as devices for picking an elite and not an instrument by which the people exercise real control over these leaders.

Since the time of Ancient Athens, students of democracy have been skeptical that elections are a way of implementing democracy, at least if democracy requires something like government “by” the people rather than “of ” or “for” them. There are several grounds for this skepticism: first, elections may select unusual people – better, more able, or merely more ambitious leaders – and thereby exclude ordinary people from a regular role in government. Second, whether or not elected leaders are especially skillful, those elected to office tend to become a professional class with knowledge and interests separate from those of ordinary people. The Athenians themselves thought that lottery was the more democratic way to fill office, as it ensures that anyone who wanted to serve would be able to do so. Indeed, Aristotle defined democracy as a system in which people take turns ruling: where each rules and is ruled in turn (Aristotle 350 bc [1963]: 1317b).

Nowadays of course, every state is supposed to be a democracy – in the sense of drawing its authority to rule from the people – and modern reaction to this expectation has generally been to tone down expectations for democracy: to settle for electoral or representative democracy as the only feasible kind of democracy in modern circumstances. So, rather than the people ruling directly, elected elites rule on their behalf.

Carolyn Aiello was caught in a constitutional transition. Living in the Bay Area of California, Aiello supported herself as a hairdresser. But her livelihood was (temporarily) cut off when complications associated with her pregnancy required her to take a medical leave on June 21, 1972. The doctors discovered that Aiello had an ectopic pregnancy and performed surgery to terminate her pregnancy. Although she would ultimately return to work on July 28, she could not afford the loss of even a month's income. Like millions of other Americans, Aiello applied for unemployment benefits on the basis of her physical disability – but, unlike most other applicants having serious even if temporary disabilities, her claim was denied. California's unemployment compensation program excluded from its coverage disability claims based on pregnancy.

This was a state discrimination affecting thousands of working women like Aiello. Represented by San Francisco civil rights attorney Wendy Webster Williams, Aiello and three other women sued the state to overturn this discrimination in its unemployment compensation law. Their argument was that the exclusion of pregnancy-based claims from the unemployment program violated the Equal Protection Clause. Speaking for a three-judge federal court, Judge Zirpoli ruled the exclusion unconstitutional – but the United States Supreme Court reversed. It held, in Geduldig v. Aiello (1974), that pregnancy-based exclusions are not subject to heightened equal protection scrutiny and that the California exclusion was a rational means for the state to tailor its program and, essentially, save money.

The Constitution establishes the judiciary as a co-equal department of the federal government and protects its members from political interference by granting them life tenure and prohibiting Congress from reducing their salaries. Yet Congress is free to decide whether to create lower federal courts at all, to define their jurisdiction narrowly or widely, to establish rules of procedure, and to determine the size of the judiciary's budget. Moreover, federal courts are not only staffed by presidential nominees, they must also rely on the executive branch to enforce their judgments. From this perspective it is hard not to agree with Alexander Hamilton who noted in Federalist 78 that the judiciary, having neither purse nor sword, is the “least dangerous branch.” Hamilton, it must be said, offered this as assurance to those who feared the new constitution might establish independent and unaccountable judges as threats to liberty. But he surely worried that the complex ways in which federal judges were embedded in the political structure and their dependence on the political branches might undermine their capacity to withstand political pressures.

A contemporary observer might be forgiven for thinking, after two centuries of practice, that these concerns about the independence of the federal courts were overblown. Starting with its clever and cautious stance in Marbury v. Madison, the Supreme Court has proved more than capable of protecting its institutional powers relative to the other branches and, even more, relative to the state governments.

Introduction

Should the social sciences focus more than they now do on solving real (explanatory) problems and less on developing methodologies or pursuing methodological programs? Two distinct worries animate this question. One is that too many resources may be devoted to the development and refinement of methodologies and theories, while too little attention is paid to the actual things needing explanation. In this sense there may be a misallocation of social scientific resources. The other worry is that when proponents of some methodology turn to explaining a particular event or phenomenon, they tend to produce distorted accounts; they are deflected by their inordinate attention to and sympathy for their favorite method. Method-driven social science comes up with defective explanations. Proper attempts to explain things, one might think, ought to be open ended and responsive to the phenomenon to be explained and not be committed in advance to any particular explanatory methodology. Such a commitment smacks of dogmatism or a priori-ism. These complaints are often illustrated by the familiar metaphors of drunks searching under street-lamps and the law of the hammer.

My inclination is to resist the question as not quite usefully posed. The development of systematic methodologies and theories is what permits the social sciences – or particular approaches to social science – to make distinctive and sometimes valuable contributions to understanding the events that interest us.;;There are several reasons why this is the case.