This post is part of SAQ week, celebrating a special issue of the Southern Atlantic Quarterly on Law and the Critique of Capitalism. In the following excerpt, which is drawn from a longer conversation about neoliberalism, racial capitalism, and much else, Amy Kapczynski and Wendy Brown discuss the value of democracy, the role of the courts, and strategies for democratizing our political economy. Until Dec. 10, the issue itself is being made available at a 25% discount, if you use the code DISC25.
When talking about how to move beyond neoliberalism (or capitalism), we often in LPE conversations talk about alternatives based on values and practices of democracy. So, you see arguments for “democratizing the Federal Reserve,” or “democratizing the administrative state,” or for rendering choices about how surplus is invested and allocated subject to democratic control.
Some of the people writing about democratizing the political economy very much emphasize majoritarianism as the irreducible core of democracy. (I’m thinking here in part of work by David Grewal and Jedediah Britton-Purdy, who are both deeply influenced by Richard Tuck.) In your recent book, In the Ruins of Neoliberalism, you do not define democracy through the lens of majoritarianism per se but, rather, say that “political equality is democracy’s foundation.” You then go on to draw on Sheldon Wolin’s work to argue that in a capitalist economy we cannot have democracy without a state that “deliberately works to reduce inequalities in power among citizens” and that also generates public goods and redistributes and protects against corruptions of wealth. Can you talk a little bit about Wolin or others who have influenced your understanding of democracy?
Treating majoritarianism as democracy’s “irreducible core” reduces democracy to voting and electoral outcomes. These are not nothing, and the brazen contemporary efforts by the GOP to undermine them through explicit voting restrictions join the long history of gerrymandering and voter suppression, the antidemocratic configuration of the Senate and the Electoral College, and the steady aim to thwart democracy from the Federalists forward. That said, to identify voting, rather than political equality or ruling ourselves, as democracy’s core seems more a symptom of democracy’s condition in late modernity than a critical theorization of it.
It is possible to have clean elections in the context of a deeply antidemocratic culture, one in which political power is monopolized by concentrated economic interests and elites, and the people are ill-educated and (hence) easily manipulated. It is possible to have clean elections and accepted electoral outcomes while democratic legislation to secure the most basic political and social equality is widely rejected. It is possible to democratically elect authoritarians, plutocrats, or ethnonationalists, especially when a citizenry is duped by plutocratic interests, as the GOP “base” is today. It is possible to mobilize democratic instruments—courts, legislatures, assemblies, rights, and more—for profoundly antidemocratic purposes. Each of these possibilities has materialized in contemporary “democracies,” including our own. Moreover, the question of democratic exclusions—decisive for Israel vis-à-vis Palestinians and for the United States vis-à-vis 12 million undocumented persons whose labor it devours and whose taxes it depends upon—is a question nowhere to be found when majoritarianism is heralded as the soul of democracy.
Democracy signifies in many directions but at bottom promises that the (whole) people shall rule themselves. Who or what is defined as this whole people, how and over what powers they rule—these are undecided by that promise, hence democracy’s many forms: liberal, social, direct, anarchist, communist, representative, and so on. But bracketing the specific procedures and institutions that embody or support the aspiration to rule ourselves, all democracy requires political equality, so that no one has more weight than another in decision making and nothing other than this equal weight among the people prevails.
The ancient Athenians, who bequeathed us the term and the idea of democracy, secured this political equality through three principles: isegoria, the equal right to speak and be heard by the assembly; isonomia, equality under the law; and isopoleteia, equally weighted votes and equal eligibility for office. They did not reduce democracy to voting or majoritarianism, rights or representation. In fact, they did not elect representatives, but rather rotated political offices by lot among the citizens so that elites could not concentrate power and so that any citizen might experience handling power. And although isegoria is often translated as “free speech,” it could not be further from our conventional understanding of that term as the right to say what we want, wherever and to whomever. Rather, it was the equal right of each citizen to address matters of policy before the assembly. It is a right to speak and be heard on political issues decided together, a specifically democratic practice.
The point is not that the Athenians nailed democracy. They were colonial and imperial, held slaves, and limited citizenship to male property owners. We know all this. However, these three principles highlight democracy’s fundamental requirement: political equality in deliberation and governing. They remind us that democracy is the opposite of governing by a part, by elites, by concentrated interests, by economic power or technocracy. Equally weighted votes (isopoleteia) and respect for outcomes are elements of this but don’t exhaust it. When the people’s voice is reduced to a yay or nay, to voting for one candidate or another, we are not ruling ourselves. At best, we’re acting as a plebiscite, assenting to or legitimating undemocratic power. In this regard, it is no surprise today that pollsters, pundits, and even many candidates speak not of the citizenry but the electorate—a disaggregatable and manipulable population subjected to elaborately gamed campaign strategies for candidates or major legislation, both of which are mainly underwritten by a tiny white wealthy male donor class.
You mention courts as among the instruments of democracy. The precise relationship between courts and democracy is a topic of enormous ferment in law schools today. As you know, in the United States, we have a constitution that is extraordinarily difficult to amend, and a tradition of judicial review where courts are empowered to strike down legislation as unconstitutional. My students sometimes come to law school knowing more about the gay marriage decisions and Brown v. Board of Education than the longer and darker history of the Court as an institution committed to obstructing democratic power and mobilizing rights to benefit elites. This of course leads them to imagine that the Supreme Court might play a positive role in democracy—even rescue it, in the Trump era—because courts can protect rights.
Many are pitched into a kind of despair when they learn more about the history of the Supreme Court as an institution. It sanctified slavery, violently opposed labor unions, and has used standing and other doctrines to ensure that our planet can be rendered uninhabitable without ever implicating a justiciable constitutional right. And of course, Brown v. Board’s legacy has been transformed. Constitutional law today defines discrimination as the product of racial classification rather than white supremacy or structural subordination. It has become a tool of aggrieved whites, who have used it to strike down laws and policies that seek to redress racism in ways that create racial classifications, with ever more expansive ideas of the kinds of policies that do that. (This doctrine, for example, made vulnerable attempts to redress the racialized distribution of COVID vaccines, even if they merely worked to deliberately site distribution centers in communities of color. Courts have also been asked to strike down efforts to direct COVID funds to minority communities as inconsistent with the Constitution, despite the evidence that such communities were dramatically underserved by the bailout.) The current Court has also deeply corrupted the ideal of isegoria of which you speak. As you and I have both written, they have mobilized the First Amendment’s speech protections to strike down laws seeking to dilute the power of money in our elections and to enable public sector unions to fund their efforts to build countervailing power. They constructed the qualified immunity law that has helped armor the police against accountability for racist violence.
The emphasis on majoritarianism in some LPE scholarship is deeply entangled with this history. Majoritarianism is being discussed in the context of constitutionalism and the debate about the proper role of courts in a democracy. Sometimes this appears as a debate about the role of judicial review in a democracy, particularly where judges have life tenure and the Constitution is hard to amend. Properly speaking, though, the concern is broader. The current Court is doing a great deal of damage through the interpretation of ordinary statutes and rules—interpretations that become very hard to overturn given the minoritarian bias of our legislative institutions.
You’ve written about the rhetoric and narrative in recent Court cases, but my interest here is in expanding the frame to talk about courts as instruments or institutions of democracy. When you include courts in the list of democratic instruments earlier, how are you imagining they can properly serve as instruments of democracy? Are you at all moved by critiques that suggest that courts are—structurally, historically—institutions of elite rule, so that we should pare back their power (for example, by denying them the right to strike down statutes, at least in some areas)? Should theorists focused on the importance of equality to democracy be doing more to grapple with the institutional questions about how we can secure equality, given the failures of many institutions that purportedly exist for that purpose to in fact serve it?
I’m out of my depth with your question, although I grasp its importance. I also lack that imagination you refer to—“how courts can properly serve as instruments or institutions of democracy.” Of course, courts in the abstract are indispensable for democratic rule of law in the abstract. Concretely, while courts have secured important expansions in rights for the excluded or downtrodden, and blunted some political power grabs by the powerful—and these are not trivial—don’t most poor, working-, and middle-class people, across race and gender, experience courtrooms and everything connected to them as pure power and intimidation? Places where we don’t speak or understand the language and cannot follow the game? We feel small, confused, frightened . . . even in traffic and family court, even when we are serving on juries or seeking justice for a wrong done, even when we are merely brought in as witnesses.
So while there’s plenty of what we might call noblesse oblige for democracy coming from courts, they are, in a deep way, among our most undemocratic institutions today. When our systems of law are so labyrinthine, when the lowest court is something no ordinary person can navigate alone, when the availability and quality of legal counsel correlate with financial capacity, it’s hard to know where to begin. And then there’s the travesty of the Supreme Court, which has hammered what’s left of our democracy into bits, literally. Technocracy, plutocracy, corporatocracy, and explicit antidemocracy are all compressed into the “problem of the courts” today. Lots for us to work on.
Indeed. I like how you connect the tyrannies of the Supreme Court with those of traffic court. It suggests that alongside the critique of judicial review, LPE scholars should be engaging with people (often working transnationally) who are trying to develop theories and practices of legal empowerment. The term is being used by human rights advocates who are resisting rule-of-law frameworks and the obvious problems of top-down rights enforcement and instead emphasizing power building in and around legal institutions, for example, by bypassing lawyers and litigation in favor of community-trained paralegals, peer advocates, and movement lawyering. It is a different aspect of the conversation about democratizing courts and legal institutions and brings us back to our conversation about the nature of democracy.
Let’s return to that conversation. I’m especially interested in the tensions between a view of democracy that centers the state and a view that sees decentralized power as critical to democracy. I suspect that you are as well, since you are quick to note, after talking about the need for a state that works “consistently to redistribute,” that states also “abduct, institutionalize, and wield ‘surplus power’ generated by people” (again drawing on Wolin). You offer this wonderful phrase, too, that “democracy always lives elsewhere from the state, even in democracies.” One might argue that the Left is divided precisely on this question, both theoretically and tactically. Some are focused on reasserting public or democratic values within key institutions of centralized collective power—I’m thinking here about work arguing for radical revisions to the purposes of central banks or for creating new industrial investment authorities, or (in some visions) the Green New Deal. Others—for example, those working in mutual aid traditions or on just transition, and perhaps also prison abolition—focus much more on the local and arguably embody a much more decentralized vision of democracy. How do you think about this question?
These are such important concerns. Let me break them apart a little: Can state institutions themselves be democratized? How do we relate local or decentralized democratic projects to building a better future in an irretrievably globalized world? And how do we engage inherently nondemocratic dimensions of state power for democratic purposes?
States and supranational institutions (from the European Union to the International Monetary Fund and World Trade Organization) remain our main theaters of political and economic power. For this reason, they are essential targets of radical democratic mobilization, on issues ranging from climate change to racism to capitalism, and social movements are all that ever push states in sharply progressive directions. This said, states themselves can never be democratic—they are not where power sharing occurs, and one can even argue that when issues are “statified,” their democratic dimension is stilled. (Thinkers ranging from Janet Halley to Sheldon Wolin have made such arguments.) Yet left projects that ignore states risk reproducing the idea that made a wreck of twentieth-century socialist experiments, namely, that institutionalized political power can be ignored, that it is “their” problem, not “our” problem. Enlisting these institutions matters for immediate survival—protecting this people or that rainforest—for culturing prospects of more radical transformation, and for exploring how states can be kept responsive to democracy even if they themselves are not democratic.
State management of the pandemic is an example. The COVID relief package that was passed when the GOP was in power, the CARES Act, was the largest upward redistribution of wealth in the history of capitalism. It slashed taxes for the wealthy, funneled billions to corporations, and threw paper towels to the masses. Stimulus checks, unemployment insurance relief, and so forth, comprised less than a third of the CARES Act budget. Indeed, it was the final hurrah for the GOP long game of corporate welfare and tax cuts on wealth under Trump . . . and is one reason the rich got so much richer during the pandemic. The ARP Act, passed a year later (under the Biden administration), combined generous stimulus payments to individuals with huge infusions to mass transit, elementary and secondary schools, universities, pre-K, childcare, nutrition programs, public housing, and more.
But more than simply helping precarious people and communities, after years of neoliberal nonsense about individual self-reliance and antagonism to public provisioning, the ARP demonstrated what state power can do and what people can demand of it. Consider what a difference this would have made in 2009! Imagine if the Obama administration had had the courage to nationalize the banks and bail out the hoi polloi who lost homes and retirement savings! Not only would the aftermath of the financial crisis have been different for the many, but that move would also have held Wall Street responsible for the crisis and exemplified how political power can bring economic power to heel. It would have modeled a state oriented by democracy rather than finance capital. And all of this, in turn, could have sped the process by which the disastrous neoliberal experiment was ended, while strengthening social movements for alternatives. Instead, we lost a decade, during which the planet began to really burn hot, homelessness exploded, and embittered working- and middle-class whites hit hard by the crisis turned rightward.
The Bernie Sanders campaign/movement is another example of bringing left demands to a (capitalist) state and system. Debt relief, free college, universal health care, basic income, the Green New Deal—all involve huge build-outs of the capitalist social state. Far from abolishing capitalism, they depend upon its “health” and growth, and on a huge state apparatus. This is both their promise and their limitation. We need to be honest with ourselves about this. You can call it “socialism,” but its base is robust capitalism, and its administration is state-centric.
You also asked about decentralization, mutual aid, and local experiments with (nonstatist) democracy. One important consideration in judging to what extent these endeavors build left possibility requires judging when and whether they constitute “fugitive democracy” (Wolin’s term), “prefigurative politics,” or withdrawal. When are they scalable, as the social scientists like to say, and when are they rabbit holes down which left energy runs? When do they function as critique, consciousness raising, and citizen education?
Democracy from below, workplace democracy, experiments with radical democracy in towns or regions can all provide what Tocqueville termed the experience of ordinary citizens handling power, thinking about ourselves in common, and being closely connected to political decisions one makes with others. They can pull participants from self-interest or ideological rigidity into wrestling with difference, diversity, and the common when that is not our culture or our wont. This is why Tocqueville called them “schools of democracy”: handling power, living with our political decisions, and thinking together about the common are essential features of a democratic citizenry but are not cultivated by large nation-states or capitalist, especially neoliberal, culture. However, local experiments can also wall off the outside and outsiders. They can be exclusionary, reactionary, racist, provincial, or xenophobic. Even mutual aid networks can become bubbles of collective self-satisfaction or self-enclosure. There are no bright lines here, and what begins as a radical critique or model of another world can transform into something else.