“Exit, Voice and Disloyalty”

Heather Gerken has posted this draft on SSRN (Duke Law Journal).  Here is the abstract:

Much of constitutional theory is preoccupied with a single question: What does a democracy owe its minorities? And most of the answers to this question fit naturally into the two categories Albert Hirschman made famous: voice and exit. On both the rights side and the structural side of constitutional theory, scholars worry about providing minorities with an adequate level of influence. And the solutions they propose almost inevitably offer minorities a chance at voice or exit, as if no other option exists. The First Amendment, for instance, offers minorities the right to free speech (voice) and private association (exit).

Exit and voice are not, however, the only options available to a minority group seeking influence. That’s because much of the nation’s administrative structure looks more like Tocqueville’s democracy than Weber’s bureaucracy. In our highly decentralized and partially politicized system, minorities can wield influence over national policy because they routinely administer it. State officials regularly run federal programs, often with governors and state legislators serving nominally bureaucratic roles. Federal policy is often implemented by local juries and local prosecutors, state and local school boards, and state-created agencies. Because national minorities often constitute local majorities in the United States, these institutional arrangements ensure that those with outlier views help set federal policy. Voice and exit thus aren’t the only paths of influence for minorities. Minorities can also exercise agency in their ongoing quarrel with the center because they are often the center’s agents.

Retooling Hirschman’s frame to include agency, then, doesn’t just draw our attention to an underappreciated avenue of minority influence. It raises questions as to why voice and exit have entirely dominated constitutional theory — why scholars who are interested in minority empowerment have overlooked the role that administrative arrangements can play in furthering that goal.

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