By Mike Dorf
On Wednesday, I was the commentator on a Federalist Society-sponsored presentation by libertarian lawyer Clark Neily at Cornell Law School. Mr. Neily argued for more robust judicial scrutiny of all laws that infringe liberty, regardless of whether they infringe fundamental rights. I expressed skepticism about the possibility of cabining this approach, given the experience of the Lochner era. All in all, it was a fun, respectful exchange.
Here I want to comment on a point Mr. Neily made in passing. Although his core argument focused on rights, he also expressed the view that the Supreme Court's acquiescence in the growth of the federal government called into question the notion of a government of enumerated powers. The same argument was made by Thomas Jefferson in opposing the Bank of the United States during the Administration of George Washington. Jefferson lost internally. Once in office, the Jeffersonians permitted the Bank's charter to expire, which was widely regarded as a cause of the calamitous course of the War of 1812, so that even Jeffersonians eventually gave up on the point. But hey, if you're speaking to an academic audience, there's nothing wrong with re-fighting old fights. Accordingly, Mr. Neily pressed on.
One of his contentions was that overreaching by the federal government accounts for a July Rasmussen poll finding that only 23% of Americans think the federal government has the consent of the governed (up only 2% from a January survey). Now for some skepticism about what this entails:
1) Rasmussen is a legitimate polling outfit but its results typically skew to the right.
2) Both the July and the January stories on the Rasmussen website segue seamlessly from touting the respective poll findings to touting a recent book by Scott Rasmussen (in identical language), which doesn't exactly invalidate the findings, but makes one wonder about the larger point.
3) According to the July report, "most liberal voters (58%) think the federal government has the consent of the governed. Most moderates (57%) and most conservatives (84%) disagree." That VERY stark ideological polarization very strongly suggests that the poll is not in fact measuring "consent of the governed" in a strong sense but instead is measuring whether the poll respondents support what they perceive as current federal policies. Indeed, to an average poll respondent, "consent of the governed" probably sounds a lot like "your agreement" or "your support." That would likely explain the ideological polarization during a Democratic Administration. I'd be willing to bet an enormous sum of money that if the same question had been asked in January of 2001, the liberal/conservative breakdown would have been reversed.
4) When political theorists talk about "consent of the governed" I do not think they mean support for any particular policy or administration. They mean something much thinner. How might one go about measuring that thinner thing by polling? A better question might be "Do you believe that the American system of government offers people a reasonably fair opportunity to influence government policy?"
5) Even then, I suspect that many actual poll respondents would still answer based on whether the candidates they supported in the then-most-recent election won.
6) Finally, to pick up on a point I made yesterday, there is a substantial difference between expressed and revealed preferences. It's one thing to tell a telephone pollster that you think the government lacks the consent of the governed. It's something else to write a letter to the editor or go to a peaceful protest. It's quite another thing entirely to take to the streets to demand or bring about the overthrow of the government. It takes something like that last act to show a lack of consent of the governed in the strong sense.