The afternoon of Election Day proved an opportune moment for Harvard Law School Professor Vicki Jackson to discuss, “Constitutionalism and a Right to Effective Government?” the new book she edited with Yasmin Dawood. It argues that governments worldwide are failing to provide basic functions — protection of rights, prevention of violence, and promotion of material well-being — and that this ineffectiveness threatens both general welfare and democracy itself. Thus, an effective government becomes an essential factor in sustaining democratic constitutionalism.
During a Harvard Law School Library-sponsored event on Nov. 8, Jackson introduced a roundtable discussion featuring five of the book’s contributors. She began by invoking the preamble of the U.S. Constitution, which claims to be about establishing justice, securing liberty, and providing for defense and general welfare. Yet, she noted, this doesn’t necessarily amount to a guarantee. “Constitutions purport to establish governments for beneficent purposes — but what happens if government is ineffective? Without effective government, one cannot secure rights. One cannot enjoy a well-ordered life in society.”
This need, she said, is seldom discussed in the context of U.S. constitutionalism, and the book is meant to open that discussion. “Effectiveness in government is not something one can just assume. It must be worked on as part of the project of constitutionalism. … If people are discussing this question at all, the book will have achieved its purpose.” Jackson allowed that some of the book’s reasoning may be controversial.
University of Virginia School of Law Professor David Law ’96 pointed out how the need for effective government represents a challenge to standard liberalism. He noted that liberals tend to favor individual rights and less government intervention; yet a more effective government would likely be a more activist one. “From a classical liberal perspective, the state is a necessary evil, the state that governs best governs least, and we should be skeptical or even hostile to the very idea of collective goals. From this perspective it becomes very difficult to argue for effective government. A state that can’t tie its own shoelaces becomes affirmatively desirable.”
Yet he suggested that when the government does not take an active role, corporate entities may gain power by claiming the power of individuals.
Thus, he said, effective government could be the key to a 21st century, “post-liberal” version of constitutionalism. “Oligarchs, corporations, etc, wield as weapons the constitutional rights that were intended to protect weak and defenseless individuals from the state. This economic power … gives our plutocrats the power to sway elections. So, the domain of politics is a potential counterbalance to oligarchy. The public leviathan could be a check on the private leviathan. … A right to an effective government is nothing less than a right to a government capable of making and asserting decisions on the part of the people against the oligarchs.”
Harvard Law School Human Rights Program director Gerald Neuman ’80 focused on the difficulty of defining an effective government, much less enforcing one. “The phrase has a neutral, instrumental sound that could appeal to people holding a wide range of values,” he noted. For some it could mean protection of human rights, but there are also darker interpretations. “[It] could mean that beneficiaries of bad legislation and bad regulation have the rights to insist on the effective enforcement of the laws as written,” he said — citing as an example Texas Attorney General Ken Paxton recently suing for “ruthless enforcement” of immigration statutes. Neuman also asked who would ultimately benefit if enforcement of effective government was attempted. “Studies have shown the tendency of individualized constitutional litigation over social rights to disproportionately assist the middle- and upper-class groups, rather than those in greater need.”
Further, he argued that corporations are likely to assert themselves as rights-holders. “Corporations more than human beings have the money and the incentive and the expertise, and the opportunities as repeat players, to make long term strategic use of litigation as a means to shape the legal environment, Neuman added. For these reasons, I am concerned that adding a right to effective governance, compared to the protection that human rights law envisions, would be a net detriment.”
University of Toronto Law Professor Yasmin Dawood pointed out an apparent contradiction: Autocratic governments with robust economies tend to be effective, yet they guarantee few of the rights that are normally protected by constitutionalism. Meanwhile, democracies with weak economies and few public services may protect constitutional rights, yet the government itself is often inefficient. Thus, she asked whether an effective government, which she defined as “one that meets the needs of society by appropriately managing public resources and public affairs,” is necessarily bound to constitutionalism. A truly effective government, she said, is determined by the interaction of different factors — constitutional, civil, institutional, and political. And when all these factors are not effective, an authoritarian government is more likely to take hold.
Harvard Law School Professor of Law, Emeritus, Mark Tushnet focused on the role that courts can play in making government exercise power effectively. Courts, he said, can achieve this by leveraging “incentives to the existing underfunctioning government to improve … [by] imposing liability on a government agency for failing to meet constitutional standards in some dimension.” As an example, he cited Latin American drug access cases, in which necessary drugs were not provided by government insurance systems. Individual plaintiffs claimed that they had a constitutional right to unapproved medications which would extend their lives — the success of the individual cases varied, but the result was an overall improvement in the system of governance.
Effective government and protection of rights, he concluded, are “co-constituent, they occur simultaneously. They support each other in an interesting tension.”