Having laid out competing views on the constitutional regulation of political risk, and given the main lines of the argument for the mature position, the next four chapters turn to applications. The case studies are pitched both at the macro-level of large-scale constitutional structures, in this chapter, and at the micro-level of particularly critical constitutional principles, rules, and legal doctrines, in Chapters 4, 5, and 6.

This chapter explains, critiques, and reformulates James Bryce’s brilliant large-scale account of the American constitutional order in his neglected classic of constitutional and political analysis, The American Commonwealth, first published in 1888. Bryce argues that Madison’s precautionary strategy for channeling and containing majoritarian opinions and passions, by means of complex constitutional structures, had perverse results; it strengthened rather than containing the force of public opinion. The Madisonian strategy, shared by other framers, provides a large-scale illustration of self-defeating precautions against political risks, here the risk of populism. The power of mass opinion in America results in part from the very safeguards the framers put into place against it.

The upshot is that in America, public opinion rules. As a normative matter, the results are mixed; once in place, government by public opinion sets both a lower bound and an upper bound on the performance of the American democracy, ensuring that it performs tolerably well but also preventing it from performing better still. Although the precautionary Madisonian strategy eventually produced a tolerable political regime, it did so fortuitously, by causal pathways that Madison and other framers failed to foresee. Ironically, precautionary constitutionalism, often justified as a hedge against the limits of the knowledge and foresight of constitutional rulemakers, itself produces unforeseen and possibly damaging results. Unforeseen consequences are on all sides of the issues; they can result from the very precautions taken to guard against them.

For a final case study in the management of political risks, I turn to the administrative state. Here the relevant law is only partly constitutional in the strict sense. The eighteenth-century origins of America’s written constitution implies that constitutional text is often silent on crucial questions about the administrative state, which is largely a creation of the late nineteenth and twentieth centuries. Even where the written constitution does speak to the relevant issues, its pronouncements are obscure, even Delphic, and must be elicited through controversial methods of interpretation. Thus the law structuring and governing the administrative state stems in large part from quasi-constitutional framework statutes, especially the Administrative Procedure Act of 1946 (APA).

Here too, however, political risk management is central to the enterprise, and the contrast between precautionary and mature regulation of political risks is central to the analysis. In the face of countervailing political risks and competing political forces, the administrative state struggles to find a modus vivendi, let alone an optimum. At the level of theory, law, democracy, and expertise all have their claims. At the level of concrete politics, competing institutions and interest groups buffet the administrative agencies. Within a field of perpetual conflict structured by congressional statutes and the oversight of congressional committees, on the one hand, and presidential policies and White House oversight, on the other, agencies make decisions of law, policy, and scientific fact or causation. The third leg of this triad is critical; given the complexity of the issues that agencies decide, facts and causation are routinely difficult and contested, and agencies are either permitted or required to base their decisions on the views of expert, panels or experts on the agency’s own internal staff.

This chapter and the two that follow turn from the macro-level of the overall constitutional order to the micro-level of particular constitutional rules and principles. The same themes operate at both scales: in the large or in the small, precautionary constitutionalism focuses to excess on targeted political risks while ignoring countervailing risks, collateral harms, and unintended consequences. At either scale, a mature approach to constitutionalism strives for optimal rather than maximal precautions against salient political risks.

In this chapter, I study the political management of impartiality and its various antonyms, especially self-dealing and biased decision making. In constitutional theory, the appeal of impartiality commands widespread consensus; who could be in favor of official self-dealing or bias? Yet I will suggest that as a normative matter, impartiality is a good to be optimized, not maximized; and as a positive matter, U.S. constitutional law surprisingly often abandons the ideal of impartiality in favor of other goods.

The lens through which I will examine impartiality is the legal maxim nemo iudex in sua causa – no man should be judge in his own case, or cause. The nemo iudex principle is widely thought to capture a bedrock principle of natural justice and constitutional democracy. The U.S. Supreme Court calls it “a mainstay of our system of government” and regularly invokes it in diverse contexts, most famously as a principle of natural law in Calder v. Bull and, implicitly, to justify constitutional judicial review in Marbury v. Madison.

I have two claims to offer. One is that constitutional rulemaking is best understood as a means to regulate and manage political risks. The other is that an approach I will call “optimizing constitutionalism” is the best approach to constitutional risk regulation. It will take a book to flesh out these claims, but let me at least introduce them.

CONSTITUTIONS AS RISK-MANAGEMENT DEVICES

What do constitutions do? Legal and political theory offer several answers. Constitutions create and empower government by coordinating expectations and thereby creating institutions of lawmaking; constitutions tie the hands of majorities in ways that protect majorities from their own predictable excesses and pathologies; constitutions protect the rights of discrete and insular minorities; constitutions further moral principles of equality, freedom, and human dignity; and, most generally, constitutions “design democracy.”

None of these answers is wrong, exactly. The problem is to determine whether and how they i t together. Each of the answers identifies a value or good promoted by constitutionalism, but those goods may work at cross-purposes to one another and, under certain conditions, trade off against one another. Empowering popular control through a coordinated set of lawmaking institutions creates a risk of majoritarian oppression; in turn, creating a set of insulated institutions, such as courts, to protect the rights of minorities risks undermining democracy and political equality; and so on. In these cases, the tensions between and among the values of constitutionalism are best understood not as contradictions, but as competing risks and tradeoffs. Our problem is not that we have no good theories of constitutionalism, but that we have too many, with too little understanding of how the plural aims and values of constitutionalism relate to one another under the conditions of uncertainty that bedevil constitutional rulemaking.

The last chapter defined and illustrated precautionary constitutionalism, attempting to put that approach in its best light. This chapter turns to criticisms of constitutional precautions offered by early proponents of national power such as Hamilton, Marshall, and Story, and by New Dealers such as Frankfurter and Jackson. These critics argued that precautionary constitutionalism might prove futile for lack of incentive-compatibility; might jeopardize other values, resulting in greater risks overall; might prove perversely self-defeating, if and because the precautions create or exacerbate the very risks they were intended to prevent; and might prove unnecessary, given the availability of after-the-fact remedies against materialized risks. As we will see, these criticisms of precautionary constitutionalism parallel the criticisms of precautionary principles in the theory of regulation. Critics of precautionary regulation are following a path that the critics of precautionary constitutionalism have already traveled.

I argue that the modern theory of risk regulation has arrived at a conclusion that is structurally equivalent to Hirschman’s mature position. On this view, the goal of regulators should simply be to take optimal precautions, according to a calculus that weighs all relevant risks of action and inaction. As it turns out, however, constitutional theorists such as Publius and Story already endorsed the mature position, arguing in their own language for a resolutely optimizing approach to constitutionalism. What’s new is, in this case at least, very old.

In the regulation of financial, environmental, health, and safety risks, “precautionary principles” state, in their most stringent form, that new instruments, technologies, and policies should be rejected unless and until they can be shown to be safe. Examples include requirements that new drugs pass stringent tests of safety before they are licensed for sale; requirements that nuclear power plants pass stringent tests of design safety before coming into operation; and the Bush administration’s “one percent” doctrine, which held that even a miniscule risk of terrorism warranted precautionary countermeasures. Such principles come in many shapes and sizes, and with varying degrees of strength, but the common theme is to place the burden of uncertainty on proponents of potentially unsafe technologies and policies. Critics of precautionary principles urge that the status quo itself carries risks, either on the very same margins that concern the advocates of such principles or else on different margins; more generally, the costs of such principles may outweigh the benefits.

Although this debate is a relatively new one in the theory of regulation, it is a venerable one in constitutional law debates about second-order political risks, or so I will claim. At the wholesale level, many theorists defend a master principle according to which constitutions should be designed to take precautions against political risks arising from the design of institutions and the allocation of power among officials. At the retail level, many constitutional rules and structures have been justified as precautions against the risk of abuse of power by incumbent officials or other constitutional actors, the risk of tyrannous majorities, or other political pathologies. Although later chapters will critique precautionary justifications for constitutional rules, the aim of this one is to reconstruct such arguments in charitable terms, in order to put them in their best possible light.

At the end of Chapter 1, I attempted to put precautionary constitutionalism in its best light. On the precautionary approach, constitutional rules should build in redundant and robust safeguards against the risks that officials will predictably abuse their power and discretion, and that institutions will predictably attempt to expand their power. Safeguards are necessary because once abuses occur it may be too late to do anything about it; in the extreme, abuses will immunize themselves from correction. Above all, constitutional rulemakers should attempt to limit the downside risks of politics, ensuring that worst-case scenarios do not come to pass. Eschewing attempts to make a constitution that does good or promotes justice, they should limit themselves to preventing abuses and to limiting the possibility that officials will exploit their positions in ways that reduce the welfare or compromise the liberty of the whole polity.

This is a venerable vision of the proper aims and goals of constitutional law. It has been advocated by a series of impressive minds in many contexts, ranging from the founding era to modern legal and political theory, especially liberal constitutional theory. It is highly plausible on its face; in many settings in law and elsewhere, limiting the downside risks of choices is a sensible strategy, and aiming for too much can produce serious blunders. If the precautionary approach to constitutionalism is systematically mistaken, it is not trivially mistaken, nor is it fallacious in any simple way.

A standing anxiety of constitutional rulemaking, especially in the liberal tradition, is that lawmakers within the constitutional system will make hasty or ill-considered decisions under the influence of passion or prejudice. Accordingly, constitutional rulemakers often institute precautions against such decisions; second-opinion mechanisms are a leading example of such precautions. Many institutional structures, rules, and practices have been justified as mechanisms for requiring or permitting decision makers to obtain second opinions. Examples include judicial review of statutes or of agency action, bicameralism, the separation of powers, and certain elements of the law of legislative procedure. These deliberative procedural mechanisms have many attractions, especially from the standpoint of liberal theorists: they are in some sense value-neutral, and thus promise to improve the quality of decision making without dictating substantive outcomes a priori.

Yet additional layers of deliberation and procedure are never costless or risk-free, and second opinions are hardly costless either. Such mechanisms increase the direct costs and opportunity costs of the lawmaking system and, under certain conditions, can actually have perverse results, encouraging rather than suppressing ill-considered decisions. In this chapter, I will attempt a mature consideration of both sides of the ledger. I will thus illustrate both the conditions under which second-opinion mechanisms increase the expected quality of decisions and the overall utility of the constitutional system, and also the conditions under which such mechanisms create countervailing risks or perverse effects, and thus create costs in excess of their benefits.