Originally published in 104 Yale L.J. 1935 (1995).
Copyright 1995 by Jack M. Balkin. All Rights Reserved.
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It's been a tough day. I've spent most of it worrying about the Free Speech Principle. Or at least, the Free Speech Principle described in Cass Sunstein's Democracy and the Problem of Free Speech,(1) a book by an author I greatly admire. According to Sunstein, the primary purpose behind free speech is promoting democratic deliberation about issues of public policy.(2) Hence he divides speech into higher and lower tiers of protection. Speech most worthy of government protection is concerned with deliberation about public issues; the rest is subject to varying degrees of government regulation.(3) It is a thesis with a considerable historical pedigree. Alexander Meiklejohn made a similar claim in the 1940's.(4) Moreover, like Meiklejohn, Sunstein emphasizes that the scope of individual rights should consciously be shaped in order to promote the goals of democratic deliberation. Conversely, we should be less concerned about regulation of other types of speech -- for example, advertising and pornography -- because they do not contribute to democratic deliberation.(5)
I have been worrying about this thesis all day. Now I am driving home
on I-95. I say it's been a tough day, but in fact, I realize that I
have it pretty easy. I spend most of my life reading interesting
books and articles and talking to other people about what I have
read. Because I teach law, it's my job to be informed about
"public affairs." But I recognize that most other people in
this country have different sorts of jobs. They cook, clean, assemble
objects, answer phones, file papers, care for children. They have
hard days too, harder than I do. And, in most cases, their jobs do
not require (or even permit) them to spend much time working with
I travel over the Quinnipiac bridge to Branford, Connecticut. Usually
there is a lot of traffic; it takes about twenty-five minutes on a
good day. When I'm in the car, I usually listen to FM radio; AM is
full of talk radio -- right-wing talk shows like Rush Limbaugh, or
"shock jocks" like Howard Stern -- which many people are
quite devoted to. At least they let folks sound off a bit. I wonder
if political theorists who emphasize dialogue had talk radio in mind.
(Live from New York, it's the Jurgen Habermas show! Three hours of
unconstrained dialogue under ideal social conditions with your wild
and rational host, Jurgen Habermas!)
There is also public radio, which is supported by public grants and
listener contributions, but most people listen to popular music on
stations supported by commercial advertising. There are lots of news
reports on public radio -- too many at the end of a long day. Often I
simply pop a cassette in my car stereo. On those days I never listen
to the radio at all.
I turn up the volume and think about Sunstein's book.
[T]o succeed at all, the system [of democratic deliberation] . . . must reflect broad and deep attention to public issues . . . . [S]erious issues must be covered, and they must be covered in a serious way. Indeed, the mere availability of such coverage may not be enough if few citizens take advantage of it, and if most viewers and readers are content with programming and news accounts that do not deal well or in depth with public issues.(6)
When I get home it is usually a little before 7:00 p.m. I am tired. I
say hello to my wife. I sit on the couch and turn on the television.
Our house was built in 1971. It has an "open" floor plan --
there is no wall separating the kitchen and family room. Apparently
this was a popular architectural style at the time the house was
built; it is still popular to this day, although now people add
cathedral ceilings and whatnot (giving it that authentic midwestern
gothic look). One of the advantages of the open floor plan is that
you can watch the kids in the family room if you are working in the
kitchen. The other great advantage is that you can watch the television.
Margret and I sit on the sofa and eat our dinner and watch the tube. We flip through the channels determinedly. We are couch potatoes. Sofa spuds. We are on a mission from God. We are looking for entertainment.
What people now prefer and believe may be a product of insufficient information, limited opportunities, legal constraints, or unjust background conditions. People may think as they do simply because they have not been provided with sufficient information and opportunities. It is not paternalistic, or an illegitimate interference with competing conceptions of the good, for a democracy to promote scrutiny and testing of preferences and beliefs through deliberative processes.(7)
Our cable company offers over seventy channels. About 7:00 p.m. there are mostly sitcoms, game shows, and tabloid TV. The FCC decided to strike a blow for programming diversity by effectively forbidding the major network affiliates to program network-produced shows before 8:00 p.m. Eastern Standard Time.(8) The major result of this regulation is that the independent stations (and Fox) fill the time with reruns of previous network shows. This means I get to see all the episodes of Roseanne I missed over the years. Generally speaking these are shows that appealed to a broad enough segment of the public taste that they have survived long enough to go into syndication. So much for diversity. Meanwhile local network affiliates fill the time with game shows like Wheel of Fortune and tabloid shows like Hard Copy and Inside Edition. So much for attention to serious issues. One station has started showing reruns of The Simpsons. I am delighted. Nothing like good, cynical humor that undermines everything honorable about American life.
It may seem controversial or strange to say that there is a problem for the Madisonian system if people do not seek serious coverage of serious issues. Perhaps this suggestion is unacceptably paternalistic; perhaps we should take people however we find them. But as I have noted, the system of deliberative democracy is not supposed simply to implement existing desires. Its far more ambitious goal is to create the preconditions for a well-functioning democratic process.(9)
During the commercials we flip through the channels. We move from The Simpsons to the Simpsons -- from Homer and Marge to O. J. and Nicole Brown. The World Tonight is just ending on CNN. The big story of the day is (as usual) the O. J. Simpson case. At 7:00 p.m. there is Hard Copy, followed by Inside Edition. They are tabloid journalism, mostly about Prince Charles and Princess Diana, Woody Allen, Madonna, Michael Jackson and Lisa Marie Presley, and endless variations on the O. J. Simpson case. The stories on each show look very much alike. There are lots of flashy pictures and graphics. Most of each show consists of teasers of upcoming segments that promise us juicy details. (In our next segment, Princess Di's podiatrist reveals all!)
If sensationalistic scandals and odd anecdotes not realistically bearing on substantive policy issues are the basic source of political judgments, the system cannot work.(10)
On Channel 15, there is an attack ad comparing Senator Frank
Lautenberg with State Senator Chuck Haytaian. (Paid for by Citizens
for Haytaian.) It looks a lot like a comparison of Anacin with
Bufferin. Lautenberg says this but Haytaian says that. Lautenberg has
done this but Haytaian will do that. Haytaian has more of the pain
relievers doctors recommend. Buy -- uh -- Vote Haytaian for United
On CNN, it's Crossfire, a prime example of democratic deliberation in
the electronic age. Michael Kinsley and John Sununu are going after
the guests, who can't seem to get a word in edgewise. Now they are
going after each other. Nobody gets to talk for more than five
seconds without being interrupted. I decide to interrupt them. Zap.
We keep flipping. If something doesn't catch our interest in a few seconds, we keep on moving. There is a debate between the gubernatorial candidates for the State of Utah on C-SPAN. Zap. A discussion of educational policy on C-SPAN2. Zap. There are documentaries on the Learning Channel and the Discovery Channel. Zap. Zap. The evening news on CNN. Zap. Catholic TV. Zap. Talk show on CNBC. Zap. Six channels worth of Branford Community Access. Zap. Zap. Zap. Zap. Zap. Zap.
It is also important to ensure not merely that diversity is available, but also that a significant part of the citizenry is actually exposed to diverse views about public issues.(11)
We go back to The Simpsons (Homer, not O. J.). Homer is screwing things up again. He's a kick. I wonder if I am being a bad citizen. Perhaps I should be informing myself about public issues. Perhaps I should be learning about the General Agreement on Tariffs and Trade. But hey, I did my part. I read Sunstein's book on the First Amendment today. But instead of a law professor, what if I were a steelworker? A bus driver? A waitress? A telephone sales grunt? In short, what if I had a real job?
[N]o political regime can or should insist that citizens be thinking about politics all, most, or even much of the time; people have many other things to do. But lack of interest in information about government should not be taken as inevitable or as a product of "human nature." We know enough to know that lack of interest is often a result of inadequate education, perceived powerlessness, unsatisfactory alternatives, or a belief that things cannot really be changed. Indifference to politics is frequently produced by insufficient information, the costs of gaining more knowledge, poor educational background, or, more generally, an unjust status quo.(12)
"Doh!" Homer exclaims.
Margret and I, in an apparent fit of false consciousness, flip to E!, the "Entertainment and News Authority." E! is completely devoted to the news of the entertainment industry. Just as news programs are becoming more like entertainment, so entertainment itself has become an important component of the news. This phenomenon starts at the beginning of the century with the lowly gossip column, and gradually swallows up large parts of news coverage. The lives of celebrities -- particularly their private lives -- are the events of the day. They are public discourse -- they are what people are talking about.(13)
Margret and I flip and watch, watch and flip. Poor educational background does not explain why we are watching television this evening. Lack of alternatives does not explain it. Our house is overflowing with books and magazines. They are piled on the floor in front of us. We are not looking at them now. We are watching. Watching television.
Busy people cannot be expected or required to devote all or most of their time to public issues. One of the advantages of a representative system -- not to mention one with a large bureaucracy -- is that it allows the citizenry to devote its attention to subjects other than politics. But it is hardly unrealistic to assess a system of free expression by examining whether it generates broad and deep attention to public issues, and whether it brings about public exposure to an appropriate diversity of view. These are not utopian goals.(14)
Zap. On MTV, Sheryl Crow's new video is just beginning. Sheryl is
dressed with just the hint of requisite sluttiness apparently now
demanded of women who appear on MTV (with the possible exception of
Hillary Clinton and Mother Teresa). She (Sheryl, not Mother Teresa)
is wearing glossy lipstick, a short skirt, a metric ton of hair
mousse, and 70's-style clunky platform high heels. On MTV, I guess,
that's how you have to look.
Stimulate or die.
(You wouldn't want someone to flip past you, now would you?)
All I wanna do is have a little fun before I die
Says the man next to me out of nowhere
It's apropos of nothing
He says his name is William
But I'm sure he's Bill or Billy or Mac or Buddy.
And he's plain ugly to me
And I wonder if he's ever had a day of fun in his whole life.(15)
Zap. On C-SPAN there's a discussion of Clinton's foreign policy. I keep flipping. I check out The Simpsons again. Inside Edition. VH-1. I mistakenly land on C-SPAN. Oops. Zap. Zap. Zap. I keep flipping. I am being a very bad boy.
It might be objected that some of these strategies will merely get people to change the channel, to turn off the television, or to turn to other kinds of entertainment. This risk is especially severe for regulatory strategies that attempt to counter current audience desires for entertainment. A requirement of one hour of public affairs programming per night, for example, would probably produce a large diminution in the audience. This is of course a real possibility, and any regulatory efforts must be attentive to the risk. But it is hardly clear that a decision to turn off the television would be genuinely harmful for the individuals or for society, at least if the relevant programming is low quality and does not contribute to Madisonian or other social goals.(16)
Zap. Sheryl and her band stand outside the corner of an abandoned
movie theater. The passersby hear her music. They throw quarters into
her guitar case. Magically, they expand as if filled up with helium,
and float delightedly, like huge human balloons, towards the stars.
All I wanna do
Is have some fun
I've got a feeling
I'm not the only one.
All I wanna do
Is have some fun
'Til the sun comes up over Santa Monica Boulevard.
All over America, millions of cable subscribers, induced no doubt by
unjust background conditions, are flipping past The MacNeil/Lehrer
NewsHour, past the Discovery Channel, past CNN, past the local news.
They are watching soap operas, made-for-TV movies, gossip shows
dressed up as investigative journalism, interviews with Tom Cruise,
silly sitcoms, titillating talk shows, music videos with pouty women
writhing in a sea of morphing graphics. What they are watching is
fast, funny, raucous, loud, lewd, low-rent, and mesmerizing.
Above all it is entertaining.
There is reason to believe that viewing habits, like many other customs and cultural practices, are extremely vulnerable to large-scale shifts on the basis of relatively mild government interventions. . . . In any case there is no good basis for supposing that current tastes and habits are rigidly fixed.(17)
In living rooms around the country, people are engaging in dialogue
of a certain sort. They are responding with their remote controls.
They are voting with their fingertips. The people are speaking. They
are demanding something. They are demanding entertainment.
They want their MTV.
And if they are not entertained, they will exercise their inalienable right to zap.
It is not unacceptably elitist to favor a system of free expression that promotes attention to public issues and diversity of view. Of course, it is possible or even likely that the well-educated will disproportionately enjoy high-quality broadcasting. But this is precisely because they have been educated to do so, and high-quality education is not something to be disparaged. It has a point. Indeed, we should think of the broadcasting media as part of a system of public education designed to serve all those who need it; and there is nothing elitist about that.
Even if higher-quality broadcasting is seen disproportionately by the well-educated, its benefits will hardly be restricted to people who are already well informed. Many people who are not college graduates should benefit a great deal from such programming. Indeed, they may receive disproportionately high benefits.(18)
Zap. I flip past CNN, past C-SPAN, past C-SPAN2, past The Mary Tyler
Moore Show, past the infomercial, past the attack ads on channel 3,
past the six channels of Branford public access. I am back to MTV.
Sheryl is still there. She sings dreamily, to no one in particular:
All I wanna to do
is have some fun
I've got a feeling
I'm not the only one.
All I wanna do
is have some fun
'Til the sun comes up over Santa Monica Boulevard.
Sunstein's book is an attempt at a new liberal synthesis of First Amendment theory; in particular, he attempts to reconcile the traditional left-liberal defenses of free speech with contemporary problems of campaign finance, mass media regulation, advertising power, pornography, and racist speech.(19) His focus on these problems is not accidental. It reflects the increasing sense among liberals that libertarian solutions in these areas have become unacceptable -- an example of a more general phenomenon I call the "ideological drift" of the free speech principle.(20) It is a tribute to Sunstein's ingenuity that he succeeds as well as he does in his task of reconciliation. Yet in so doing, he exposes a crucial fault line in theories of free speech and constitutional law generally -- a fault line organized around the meaning and value of popular culture.
Although Sunstein calls his book Democracy and the Problem of Free Speech, it could with equal justification have been called "Free Speech and the Problem of Democratic Culture." The "Problem" that concerns him is nothing less than the accelerating degradation of public culture -- a degradation both in the character of the public's viewing choices and the quality of public discourse generally.(21) This concern motivates and shapes Sunstein's attempts at reconciling liberal demands for greater regulation with traditional liberal defenses of freedom of speech. He harmonizes the two by appealing to an ideal of rational public discourse. The task of law, he believes, is to approach this ideal through wise regulation. Yet this ideal of rational discourse is necessarily posed against existing popular attitudes and preferences; hence it necessarily involves a comparison in which the latter are judged and found wanting.
Of all of the many interesting issues in Sunstein's book, this theme is the most pervasive and the most important. And his crusade to mold public culture nearer to this ideal raises a large if largely obscured issue: What attitude should constitutional theorists take towards the beliefs and attitudes of ordinary citizens and the products of popular culture? I say "constitutional theorist," and not "constitutional theory," for theory is not a bloodless matrix of ideas but a practice of individuals and groups. Theory is always performed by a subject situated within a social setting and within a tradition of practice; it is the product of a subject who brings her subjectivity to an object, and pronounces judgment upon it. Hence the question I ask about the nature of popular culture is equally a question about the nature of the legal academic and her attitudes as an academic towards this culture.(22) Sunstein does not pose the question in these terms; yet his book has a distinctive attitude about popular will and popular culture, an attitude that distinguishes and colors all of his constitutional scholarship.
I want to talk about constitutional theory's relationship to popular attitudes and popular culture in terms of two opposed positions -- one I shall call populist and the other progressivist.(23) The distinction between populism and progressivism is orthogonal to the more familiar distinction between "left" and "right." An opposition between progressivism and populism exists wholly within left-liberal discourse, just as one exists within the discourse of conservatives; we might say that the two sets of oppositions form a box of four.(24) However, for purposes of this essay I want to focus primarily on the discourse of left-liberals, because it is the ideological community in which both Sunstein and I (and a great many other legal academics) are located.(25)
By "populism" and "progressivism," I mean to invoke the spirit of two successive reform movements in American history, the first primarily agrarian and the second urban.(26) Despite their differences, progressivism and populism had many similarities, so much so in fact that the two are easily confused. Many of the reforms advocated by populists in the late nineteenth century -- for example, direct election of senators, the eight-hour day, graduated income taxation, and currency reform -- were put in place by progressives in the early twentieth century, albeit for somewhat different reasons.(27) Thus, although I am particularly interested in the ways in which populism and progressivism diverge, the two should not be seen as diametrically opposed. They were and are often uneasy allies, but allies they have been nevertheless. Moreover, when I speak of "populism" and "progressivism" today, I am necessarily extrapolating from events in American history to offer principles that might help us understand trends in contemporary political debates. This is an exercise in the description of ideal types; few people can be said to match the portraits I offer in all respects.(28)
Although populism and progressivism share a desire for reform, they diverge most significantly in their attitudes towards the beliefs, attitudes, and actions of the mass of ordinary citizens. They take different views about ordinary citizens' private activities, their cultural attachments, and the possibility of their participation in mass politics.
As its name implies, populism sees itself primarily devoted to furthering and defending the interests and attitudes of ordinary citizens. It has traditionally been distrustful of large and powerful organizations, whether public or private. It views massive government bureaucracy and corporate privilege with equal suspicion. Moreover, concentrations of power and privilege held too long by the same persons lead inevitably to moral and political corruption. This view has two consequences: The first is a preference for regular rotations of positions of authority and power. The second is a preference for popular participation in economic and political structures that affect the lives of ordinary citizens.
Because of its concern about corruption and its insistence that people have control over the structures of power that affect them, populism has historically been suspicious of elites -- whether academic, social, or political -- and their claims to expertise and superior judgment. It has been especially skeptical of factual expertise that parades as moral or political expertise.
The purpose of government has both a public and a private aspect for populists. Government exists to provide individuals and their families and communities with a chance to live their own lives in dignity, and to allow them to form relationships with others free from the hand of powerful public and private forces. Although this description appears to privilege private interest and association, populism has an equally important public side: It demands that ordinary people have a say in the decisions that affect them, that they be able to participate in those structures of power that shape their daily lives. Thus, populism is based on a particular conception of self-rule and self-determination, one in which the active participation of the citizenry -- when they choose to participate -- is encouraged and facilitated. This interrelation between the public and private aspects of populism is crucial to understanding its distinctive character.
People want to be part of governance, but what they want from government is respect for their ways of living. People wish to participate in government, but they do not wish to be manipulated and shaped by some master plan for effective governance. They want the opportunity to have a say in what affects them, but they also wish to be allowed to live their lives, raise their children, and pursue their own vision of happiness -- whether in families, friendships, or communities -- free from the hand of bureaucratic planning or corporate overreaching. Populism thus should not be confused either with some atomistic version of individualism or with currently trendy communitarian alternatives. Populism is no more committed to individualism in its private aspects than it is committed to communitarianism in its public ones.(29)
The dual nature of populism means that political participation is not something to be forced on the citizenry, nor are popular attitudes some sort of impure ore that must be carefully filtered, purified, and managed by a wise and knowing state. From a populist standpoint, such attempts at managerial purification are paternalistic. They typify elite disparagement and disrespect for popular attitudes and popular culture. Government should provide opportunities for popular participation when people seek it, and when they seek it, government should not attempt to divert or debilitate popular will. An energized populace, aroused by injustice and pressing for change, is not something to be feared and constrained; it is the very lifeblood of democracy. Without avenues for popular participation and without means for popular control, governments become the enemy of the people; public and private power become entrenched, self-satisfied, and smug.
Some of these themes will no doubt be familiar; they resonate with parts of the American political tradition from the Revolution onwards.(30) Many have more pathological versions that will easily spring to mind. What I would like to stress here, however, is that this way of imagining politics differs from a considerable amount of reformist discourse among left-liberals. The latter approach, which I call progressivism, has a very different attitude towards popular attitudes and popular culture.
Historically, progressivism has stood for good government and enlightened public policy in the public interest. Central to progressivism is a faith that educated and civilized individuals can, through the use of reason, determine what is best for society as a whole. Persuasion, discussion, and rational dialogue can lead individuals of different views to see what is in the public interest. Government and public participation must therefore be structured so as to produce rational deliberation and consensus about important public policy issues. Popular culture and popular will have a role to play in this process, but only after sufficient education and only after their more passionate elements have been diverted and diffused. Popular anger and uneducated public sentiments are more likely to lead to hasty and irrational judgments.
Like populists, progressives believe that governments must be freed of corrupting influences. But these corrupting influences are described quite differently: They include narrowness of vision, ignorance, and parochial self-interest. Government must be freed of corruption so that it can wisely debate what is truly in the public interest. Progressivism is less concerned than populism about centralization and concentration of power. It recognizes that some problems require centralized authority and that some enterprises benefit from economies of scale.(31) Progressivism also has a significantly different attitude towards expertise: Far from being something to be distrusted, it is something to be particularly prized. Expertise is necessary to arrive at sound policy judgments; conversely, its lack often leads ordinary citizens to misunderstand the issues and make choices that are not in the public interest. Because of its respect for expertise, progressivism has always been quite comfortable with elite discourse, and progressivism is the natural home for reformers who are members of political, academic, and social elites.
Populism and progressivism may also be distinguished by their definitions of democratic culture, and by their views about the relationship between popular culture and democratic culture. One can see the debate between populism and progressivism as a debate over what a truly "democratic" culture is. For progressives, democratic culture is a culture in which the progressive ideal of democracy can flourish. It is a culture in which people engage in rational deliberation about important public issues, and in which each person has the opportunity and the obligation to discuss such matters through rational dialogue. However, precisely because popular culture is never like this, and because an enormous amount of discourse in society does not correspond to this model, democratic culture is an ideal which is opposed to popular culture and from which popular culture is always seen as a fall. At best, popular culture is a distraction from the business of political life; it is something people turn to when they are not otherwise occupied with the business of democratic deliberation.
By contrast, populism sees a less radical division between democratic culture and popular culture. Democratic culture is the culture through which ordinary citizens express themselves, and it is by no means restricted to discussions of politics. Democratic culture is "democratic" in the sense that everyone gets to participate in it. In so doing, it ranges over the political, the economic, and the social aspects of life; this conception of democratic culture is consistent with the populist notion that economic as well as political structures of power should be made more democratic.(32) Thus, populism tends to merge democratic culture and popular culture, while progressivism tends to separate the two. For populists, popular culture is neither a debilitated version of democratic culture nor a mere diversion from the sober processes of deliberation imagined by progressivism. It is not a sideshow or distraction from democratic culture but the main event. Moreover, populism accepts, as progressivism does not, that popular culture -- which is also democratic culture -- is by nature unkempt and unruly, occasionally raucous and even vulgar. It is by turns both eloquent and mawkish, noble and embarrassing, wise and foolish, resistant to blandishments and gullible in the extreme. It is imperfect in precisely the same sense that democracy itself is imperfect.
It is important here to note the relationship between popular culture and the mass culture that is the product of economic and technological developments in the twentieth century. Much of mass culture involves programming, advertisements, architecture, and artwork produced by corporations and designed to sell products and make money. Many critiques of mass culture warn of the deleterious consequences of consumerism and mass consumption. The populist conception of democratic culture is not necessarily inconsistent with these insights. Populists can be highly critical of corporate attempts to manipulate people and sap their political energies. And populists are likely to be suspicious of elites not only in government, but also those in large media organizations.(33) But a populist view also emphasizes that ordinary people are not mere passive receptors of the messages offered in advertising, television programming, and other elements of contemporary mass culture. Such assumptions are just another way of denigrating the intelligence and abilities of ordinary people. People do not uncritically absorb and assimilate the images they see on the television screen -- they process, discuss, and appropriate them.(34) People are active interpreters and rearrangers of what they find in mass culture.(35) They use the raw materials of mass culture to articulate and express their values. Through this process, they produce and reproduce popular culture.
Populism was supplanted by progressivism at the turn of the century, and as Lawrence Goodwyn has noted, the contemporary political position that we call liberalism is much more the heir of progressivism than of populism.(36) Indeed, nowadays people are likely to use the word "progressive" as a synonym (or a euphemism) for "liberal" or "left"; in this practice I myself have been as guilty as anyone else. Although aspects of populism still remain in liberal discourse, I think it is fair to say that progressivism is the more dominant sensibility. This is especially so in the academy, where most constitutional theorizing occurs.(37)
One effect of the hegemony of progressivism in defining the character of liberal thought is that its populist possibilities have been more or less submerged. The enduring connections between liberalism and progressivism have made liberalism continually susceptible to populist attacks from the right: A good example is George Wallace's assaults on the liberal media and "pointy headed" intellectuals.(38) The connections between liberalism and progressivism have also led to constant and persuasive claims that liberals are out of touch with and even hostile to the concerns of ordinary Americans. The contemporary Republican party has understood this lesson well. By discarding or disguising conservative elitism and offering a rightward spin on populist rhetoric, conservative Republicans have repeatedly trapped liberal Democrats into a progressivist mode that continually pits them against the sensibilities of many ordinary citizens.(39)
There is an important and unacknowledged tension between populism and progressivism in constitutional theory, and constitutional theorists could learn a great deal from the populist sensibility.(40) This is particularly so because of the natural affinities between progressivism and academic life. Progressivism values the contributions of elites and experts, and academic discourse is a form of elite discourse. Despite their often egalitarian views, legal academics are socialized into a culture that privileges elite values.(41) After all, like everyone else, academics hope to succeed in their chosen calling; and they tend to distinguish themselves by being smarter, by being more learned, and by possessing greater expertise. Thus, saying that legal academics have tendencies towards elitism is like saying that they have tendencies towards breathing oxygen. An encounter with populist values may help balance their natural proclivities. Yet populism is hardly without its limitations. Indeed, both populism and progressivism have symmetrical failings, each of which is more easily recognized from the opposite perspective. History teaches us that populism has recurring pathologies; it is especially important to recognize and counteract them. These dangers are particularly obvious to academics and other intellectual elites: They include fascism, nativism, anti-intellectualism, persecution of unpopular minorities, exaltation of the mediocre, and romantic exaggeration of the wisdom and virtue of the masses.(42) What is more difficult for many academics to recognize is that progressivism has its own distinctive dangers and defects. Unfortunately, these tend to be less visible from within a progressivist sensibility. They include elitism, paternalism, authoritarianism, naivete, excessive and misplaced respect for the "best and brightest," isolation from the concerns of ordinary people, an inflated sense of superiority over ordinary people, disdain for popular values, fear of popular rule, confusion of factual and moral expertise, and meritocratic hubris.
I have suggested that legal academics can learn something from
populism and that they should fashion constitutional theories that
are more sensitive to populist concerns. Yet the academic who
advocates populism is still the member of an intellectual elite; she
still writes in academic journals and speaks in the language of
academic theory. Thus, a debate about the merits of populism versus
progressivism is not a debate between progressivist intellectuals and
academic representatives of "the people." It is a debate
among intellectual elites within the legal academy about their proper
relationship to popular culture and their appropriate understanding
of attitudes and beliefs of ordinary citizens. Constitutional
theorists may be able to offer a populist constitutional theory, but
what they will inevitably produce is a populist constitutional theory
clothed in the language of academic discourse and directed to other academics.
Thus, my argument about the lessons of populism is as much a point about the sociology of knowledge as it is about political theory. To give populism its due requires that academics realize that their social situation, their values, the kinds of work they perform, and the kinds of discourses they practice all tend to distance them from the lived experience and perspectives of most Americans. Many legal academics in particular lead lives of comparative privilege and high status. They are well compensated for relatively easy and enjoyable work, and that work focuses disproportionately on issues of public policy and matters of public concern. They inhabit a culture that places heavy emphasis on elite values and expertise, and they engage in a form of discourse that is often obscure and even irrelevant to the vast majority of people in this country.
If critical race theory and feminism have taught us anything, it is that one cannot begin to understand the situation of others until one also understands one's differences from them and how this difference affects one's ways of seeing the world. If we do not investigate the relationship between our social situation and our perspectives, we may confuse our conception of what is reasonable with Reason itself. If we do not see how our reason is both enabled and limited by our position, we may think our judgments positionless and universal. We may find the perspectives of those differently situated unreasonable, bizarre, and even dangerous, or we may not even recognize the possibility of another way of looking at things. What is true of race and gender is also true of professional training and social position. If legal academics are to learn something from populism, they must first try to understand the professional perspective from which they offer their judgments and the kinds of rhetoric they use to offer them.(43)
For me, it is particularly telling that Richard Parker chooses to introduce his "Constitutional Populist Manifesto" through a close textual reading of a short story by Thomas Mann.(44) Parker offers this discussion with little recognition of the incongruity of this device. Yet the idea that the advantages of populism will be revealed to us by a Harvard Law professor discussing the structuralist oppositions at work in early twentieth-century German literature is emblematic of the peculiar position of the populist constitutional theorist.(45)
A constitutional theorist who wants to incorporate populist insights must avoid two symmetrical errors. The first is engaging in an indulgent romanticism about the inherent wisdom and goodness of the people. Respecting and learning from the perspectives of ordinary citizens is not the same thing as uncritical acceptance. This is especially so since "ordinary citizens" are not an undifferentiated mass. They differ in their attitudes and concerns every bit as much as academics differ among themselves. The fantasy of the unadulterated goodness and wisdom of those who live beyond the ivory towers of academia is precisely that, a fantasy; the romance of "the people" and their mores is the sort of infatuation characteristic of someone who has not yet lived with the object of her affections on a daily basis.
The second error is the tendency to speak as a representative of "the people," rather than as a privileged academic who seeks to recognize the value of populism in her scholarship. Those who make this mistake will inevitably be faced with the rebuttal that they are not truly "of the people." In particular, such academics are highly vulnerable to accusations that the cars they drive, the books they read, the circles in which they travel, the houses and neighborhoods in which they live, and the schools to which they send their children are inappropriate for those who profess solidarity with the great unwashed. Hence their populist and egalitarian rhetoric shows them to be at best fuzzy-headed dreamers and at worst moral and political hypocrites.(46)
The way to avoid the force of such criticisms is to avoid the causes that occasion them. A populist constitutional theory must begin not with an examination of the ordinary citizen but with the theorist herself: The constitutional theorist must consider how her own position as an academic distances her from the experiences and views to which she tries to give credence.(47) She must understand how she is the bearer of a distinctive subculture that colors and even distorts her views about what is most important in life. This is not a claim that constitutional theorists have nothing in common with ordinary people -- a preposterous suggestion -- but rather that there are some things that they do not have in common, and that these may be overlooked in the very process of theorizing.
The tension produced by the academic's position qua academic does not arise so urgently for progressives, because progressivism is a more natural position for intellectual elites. In comparison to the populist, the progressive academic feels less discontinuity between her beliefs and her social situation. Progressivism tends to emphasize and admire the sorts of things academics themselves tend to value -- expertise, erudition, reasoned debate, and deliberation. Moreover, progressivism tends to identify these qualities with the very ideals of reasoned deliberation it exalts. The perspective of elites tends to merge with the perspective of the sort of informed, rational, deliberative person that progressivism sees as properly engaged in the ideal of democratic deliberation. As a result, progressivism tends to make the ideological effects of the academic's social situation invisible to herself. Yet the fact that progressives may not feel the tension of inconsistency experienced by their more populist colleagues does not mean that ideological effects are absent from their thought; it means only that these effects are more difficult for them to recognize.
* Lafayette S. Foster Professor, Yale Law School
1. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).
2. Id. at 252.
4. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948), reprinted in POLITICAL FREEDOM 3 (1960) [hereinafter MEIKLEJOHN, POLITICAL FREEDOM].
5. SUNSTEIN, supra note 1, at 123, 127, 159-65.
6. Id. at 20.
7. Id. at 19-20 (footnote omitted).
8. See Amendment of Part 73 of the Commission's Rules and Regulations with Respect to Competition and Responsibility in Network Television Broadcasting, Report and Order, 23 F.C.C.2d 382, 384 (1970) (describing and promulgating "Prime Time Access Rule" (PTAR), codified at 47 C.F.R. § 73.658(k) (1993)). By its own terms, the PTAR's prohibition applies only to network affiliates in the top 50 markets, but this effectively makes uniform network programming for the remainder unprofitable. On the PTAR, see THOMAS G. KRATTENMAKER & LUCAS A. POWE, JR., REGULATING BROADCAST PROGRAMMING 72-74, 99-100 (1994).
9. SUNSTEIN, supra note 1, at 21.
10. Id. at 20-21.
11. Id. at 22.
12. Id. at 21.
13. On the history of this development, see generally NEAL GABLER, WINCHELL: GOSSIP, POWER, AND THE CULTURE OF CELEBRITY (1994).
14. SUNSTEIN, supra note 1, at 22.
15. SHERYL CROW, All I Wanna Do, on TUESDAY NIGHT MUSIC CLUB (A&M Records 1993).
16. SUNSTEIN, supra note 1, at 89.
17. Id. at 90.
18. Id. at 91.
19. Id. at xviii-xix.
20. J. M. Balkin, Ideological Drift and the Struggle over Meaning, 25 CONN. L. REV. 869 (1993); J. M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 DUKE L.J. 375, 375-87 [hereinafter Balkin, Some Realism About Pluralism].
21. Consider, for example, this eloquent cri de coeur:
[I]t would not be an overstatement to say that much of the free speech "market" now consists of scandals, sensationalized anecdotes, and gossip, often about famous movie stars and athletes; deals rarely with serious issues and then almost never in depth; usually offers conclusions without reasons; turns much political discussion into the equivalent of advertisements; treats most candidates and even political commitments as commodities to be "sold"; perpetuates a bland, watered-down version of conventional morality on most issues; often tends to avoid real criticisms of existing practice from any point of view; and reflects an accelerating "race to the bottom" in terms of the quality and quantity of attention that it requires.
SUNSTEIN, supra note 1, at 23.
22. This inquiry is a special case of the "problem of the subject" that is a central concern of postmodern jurisprudence. See J. M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105 (1993); Pierre Schlag, The Problem of the Subject, 69 TEX. L. REV. 1627 (1991).
23. Richard Parker has recently called for a revival of constitutional populism. See RICHARD D. PARKER, HERE, THE PEOPLE RULE: A CONSTITUTIONAL POPULIST MANIFESTO (1994). Parker calls the sensibility he opposes "Anti-Populist," and he argues that it is the dominant form of constitutional discourse. Id. at 56. His description of this dominant discourse has many affinities to what I call "progressivism." I prefer the term "progressivism" for two reasons. First, this term links contemporary attitudes to an ongoing historical tradition of political thought. Second, it attempts to give this tradition its due as a coherent and viable way of thinking about politics that is much more than a simple opposition to populism.
24. For example, in the 1896 election the concept of "the progressive society" -- one devoted to rational progress, civic duty, and social order -- was offered by the Republican defenders of the values of the Gilded Age against what was thought to be a dangerous populist insurgency. See LAWRENCE GOODWYN, THE POPULIST MOMENT: A SHORT HISTORY OF THE AGRARIAN REVOLT IN AMERICA 272-73 (1978).
25. I should add here that the approach of some critical race theory suggests still another vantage point, which has many affinities to what I am calling "populism" but is by no means identical to it.
26. ROBERT W. CHERNY, POPULISM, PROGRESSIVISM, AND THE TRANSFORMATION OF NEBRASKA POLITICS, 1885-1915, at 151-66 (1981); RICHARD HOFSTADTER, THE AGE OF REFORM 131-34 (1955).
27. CHERNY, supra note 26, at 94; see also GOODWYN, supra note 24, at 267-69; HOFSTADTER, supra note 26, at 134; SAMUEL E. MORISON ET AL., A CONCISE HISTORY OF THE AMERICAN REPUBLIC 439 (1977).
28. The emphasis on an ideal type is especially
important because of basic terminological difficulties in assigning a
fixed meaning to the word "populist." For example, some
historians limit the term to members and followers of the Populist
Party because they are particularly interested in why people with
roughly similar ideas stayed within the Democratic and Republican
Parties. See, e.g., JEFFREY OSTLER, PRAIRIE POPULISM: THE FATE OF
AGRARIAN RADICALISM IN KANSAS, NEBRASKA, AND IOWA 1880-1892 (1993).
Others use the term to refer to a more general political movement
that was eventually either assimilated into or co-opted by the major
political parties and which has echoes in later political
developments like the New Deal. See, e.g., JAMES R. GREEN,
GRASS-ROOTS SOCIALISM: RADICAL MOVEMENTS IN THE SOUTHWEST 1895-1943
(1978); MICHAEL KAZIN, THE POPULIST PERSUASION (1994); NORMAN
POLLACK, THE HUMANE ECONOMY: POPULISM, CAPITALISM, AND DEMOCRACY
(1990); C. VANN WOODWARD, THE BURDEN OF SOUTHERN HISTORY 141-66
(1960). Finally, historians have increasingly come to recognize the
important differences in the concerns of populists in the South and
the Midwest. See, e.g., STEVEN HAHN, THE ROOTS OF SOUTHERN POPULISM:
YEOMAN FARMERS AND THE TRANSFORMATION OF THE GEORGIA UPCOUNTRY,
1850-1890 (1983) (Southern populism); OSTLER, supra (midwestern
populism); see also William F. Holmes, Why Populism Did Not Flourish
in Iowa, 22 REVS. AM. HIST. 608 (1994) (reviewing Ostler). Like
Pollack and Woodward, I believe that there is a line of thought that
can be called "populist" that is manifested in the
political spirit of the 1890's but that nevertheless transcends its
particularities. Moreover, I believe this tradition, though subject
to variations, resonates throughout American history from the
Revolution to the present day.
The contours of progressivism have similarly generated considerable historical dispute. See, e.g., ELDON J. EISENACH, THE LOST PROMISE OF PROGRESSIVISM (1994) (describing progressivism as inherently conflicted and self-subverting); Daniel T. Rodgers, In Search of Progressivism, 10 REVS. AM. HIST. 113, 123-27 (1982) (describing progressivism not as an intellectual system but as a set of intellectual tools and identifying at least three different strands of progressive thought). I have profited greatly from David Rabban's fine discussion of progressive intellectuals' philosophies of free speech and individual rights. David M. Rabban, The Role of Free Speech in Progressive Social Thought (1995) (unpublished manuscript; on file with author).
29. Richard Parker's description of populism emphasizes the importance of energizing people to participate in politics, and then respecting this energy. PARKER, supra note 23, at 54-65. Because of the particular focus of his book, he does not sufficiently highlight what I am calling the private aspect of populist sensibility. A populist might well be concerned that people are not energized politically because public and private concentrations of power make it difficult for them to be heard and have an influence over the decisions that affect their lives. These barriers to participation should be removed. Yet ordinary citizens might have very good reasons for not being politically energized at certain times, since from their perspective there is considerably more to life than politics -- for example, family, friendships, communal associations, leisure, entertainment, and work. Imposition of a public-issues-centered view of life can itself be a form of elite disparagement of populist sensibility. See infra part X.
30. For example, we might see elements of populism in revolutionary attitudes towards Britain, in Anti-Federalism, Jeffersonianism, Jacksonianism, and certain versions of the antebellum Free Labor Movement.
31. Hence, one version of progressivism --
identified with Theodore Roosevelt -- argued that government should
not oppose trusts simply because they were large and powerful but
should accept large business organizations as a natural outcome of
the evolution of capitalism. The state should therefore distinguish
between "good" trusts, which should be preserved, and
"bad" trusts, which should be regulated and punished.
HOFSTADTER, supra note 26, at 246-51.
The example of health care legislation might serve to further
distinguish populist and progressive approaches. From a populist
standpoint, universal health care is a means of allowing families to
have more control over their lives. It is a way of allowing them to
live their lives with some measure of dignity, and not to be at the
peril either of unscrupulous insurance companies out to make a buck
or penny-pinching government bureaucrats. The bureaucracies of a
centralized national health plan are at most a necessary evil to be
avoided where possible at all costs.
From the standpoint of progressivism, universal health care is the government's duty towards its citizens. It is something that is necessary because health is a public good, and because individuals will make insufficient investments in health care due to budgetary constraints and insufficient information. Their choices in this regard, although due to insufficient income and information, may not be in their best interests.
32. See GOODWYN, supra note 24, at 294-96, 302-03; BRUCE PALMER, "MAN OVER MONEY": THE SOUTHERN POPULIST CRITIQUE OF AMERICAN CAPITALISM 31, 199-220 (1980); POLLACK, supra note 28, at 86, 113-21.
33. Suspicion of the press as just another out-of-touch elite is a familiar populist theme, as are attacks on the "liberal media" using right-wing populist rhetoric.
34. See W. RUSSELL NEUMAN ET AL., COMMON KNOWLEDGE: NEWS AND THE CONSTRUCTION OF POLITICAL MEANING 17-22, 60-77 (1992).
35. See JOHN FISKE, UNDERSTANDING POPULAR CULTURE (1989); JOHN B. THOMPSON, IDEOLOGY AND MODERN CULTURE 24-25, 105, 116, 318-319 (1990).
36. GOODWYN, supra note 24, at 269-70.
37. Cf. PARKER, supra note 23, at 66-67 & n.32 (arguing that antipopulist sentiment dominates contemporary constitutional law).
38. THE MACMILLAN DICTIONARY OF POLITICAL QUOTATIONS 376 (Lewis D. Eigen & Jonathan P. Siegal eds., 1990).
39. The Democratic party leadership's failure to profit from this lesson is testimony to the dominance of progressivism in the imagination of liberal political elites. An excellent study of the Republican strategy and its consequences is found in THOMAS B. EDSALL WITH MARY D. EDSALL, CHAIN REACTION (1991), which describes how pathological populist tendencies towards racism have been manipulated by the Republican party. A blueprint of how conservative Republicans might be attacked by an economic populist is offered in KEVIN PHILLIPS, THE POLITICS OF RICH AND POOR (1990). Indeed, one way of understanding some of the successes of the 1992 Clinton campaign and the subsequent failures of the Clinton Administration is to trace the ebb and flow of populist versus progressivist rhetoric and positions offered by this chameleon-like politician. Quite aside from his many other difficulties, Clinton has tended to succeed more when he is perceived as a committed economic populist who cares about ordinary people and less when he is perceived as a progressive, elitist, bureaucracy-loving policy wonk.
40. I am not alone in this conclusion. See PARKER, supra note 23. I also see elements of populism in Akhil Amar's work. See, e.g., Akhil R. Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1131-33 (1991) (discussing majoritarian focus of Bill of Rights). Two aspects of Amar's work are particularly worth noting. The first is Amar's emphasis on the jury as an institution of popular sovereignty. The second is his emphasis on textual argument. Of all the modalities of constitutional argument, textualism tends to emphasize the kinds of constitutional arguments that ordinary citizens can make and understand. In this respect, it is probably no accident that Hugo Black, the former Senator from Alabama, was also a proponent of textualism. Finally, James Gray Pope has even given a populist spin to civic republicanism, which at least in its recent revival has been more progressivist than populist. See James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287 (1990).
41. The conflict between elitism and egalitarianism in American law schools is well captured in JULIUS GETMAN, IN THE COMPANY OF SCHOLARS: THE STRUGGLE FOR THE SOUL OF HIGHER EDUCATION 15-72 (1992).
42. There is considerable controversy among
historians over the degree to which American populism succumbed to
nativism, racism, and anti-Semitism, and over the question of whether
populism is an inherently intolerant political philosophy. See James
Turner, Understanding the Populists, 67 J. AM. HIST. 354 (1980).
Writing in the 1950's, Richard Hofstadter portrayed the populists as
anti-intellectuals of limited imagination, seeing obvious parallels
to McCarthyism. See HOFSTADTER, supra note 26, at 60-93.
Nevertheless, Hofstadter's influential portrait has continually been
subjected to criticism. Other historians have stressed that the
populists were no more intolerant than establishment America and in
many cases were more tolerant because of their own sense of
marginalization. See, e.g., WALTER T.K. NUGENT, THE TOLERANT
POPULISTS: KANSAS POPULISM AND NATIVISM (1963); NORMAN POLLACK, THE
POPULIST RESPONSE TO INDUSTRIAL AMERICA: MIDWESTERN POPULIST THOUGHT
(1962); C. VANN WOODWARD, The Populist Heritage and the Intellectual,
in THE BURDEN OF SOUTHERN HISTORY, supra note 28, at 141. In these
debates, distinctions between populists in the Midwest, West, and
South become particularly salient. Many Southern populists, faced
with attacks from commercial and political elites, often turned to
race baiting, either as a political strategy to shore up their
political base for reform, or out of disillusionment with the
possibilities for democratic change in an America increasingly
dominated by large concentrations of wealth and corporate power. The
career of Tom Watson, who mutated from radical egalitarian to racist
demagogue, is symbolic of the Faustian bargain of Southern populism.
See C. VANN WOODWARD, TOM WATSON: AGRARIAN REBEL (1955).
Beneath the surface of debates over the dangers of populism lie more troubling questions about the assumed superior morality, tolerance, and political intelligence of political and academic elites. Identifying the tradition of populism with passion and intolerance often implies a contrasting identification of elite discourse with reason and lack of prejudice, an identification that may be more imagined than deserved.
43. The argument I am making here is related to the critique of the objectivity of legal reasoning that appears in critical race theory and feminism, although I am not sure whether one should call the latter positions "populist." What all three share is the recognition that the exercise of reason is affected by the community one reasons within. Being an academic, and in particular being a legal or political theorist, is itself one way of being situated -- it is constitutive of our thought rather than transparent to it. Immersion in academic culture does not merely allow us to see the world more clearly and correctly; it also colors and even distorts our perceptions of it. As we worry about the effects of race, gender, and sexual orientation in dividing academic thought, we must not forget that what all of us have in common -- our status as academic intellectuals -- also has its own ideological effects.
44. See PARKER, supra note 23, at 9-49.
45. And one might make a similar comment about my use of postmodernist philosophy and the sociology of knowledge to make these remarks about Parker.
46. For a routine example of the genre, see Brian Timmons, That's No Okie, That's My Torts Professor, WALL ST. J., Apr. 3, 1990, at A20 (ad hominem attack on Harvard Law School CLS professor for allegedly owning a Jaguar). Perhaps this form of rhetorical attack should be recognized as a special subcategory of arguments ad automobilem.
47. The analogous point in feminism and critical race theory is that in attempting to understand perspectives of minorities and women, whites and males must begin by coming to terms with the privileges of their whiteness and maleness. See, e.g., Elaine Showalter, Critical Cross-Dressing: Male Feminists and the Woman of the Year, in MEN IN FEMINISM 116, 126-27 (Alice Jardine & Paul Smith eds., 1987).
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