There is a strong presumption in democratic countries that governments are only legitimate if they enjoy the consent of the governed, and that public policy should reflect the will of the people. Developing a coherent conception of the “will of the people,” and developing processes for determining the will of the people, is thus a problem for democratic theory and a challenge for democratic countries. What is the will of the people? Is it that range of policies which all or most people in a particular locale desire? Are the people all the adults in a particular locale, or the citizens in a particular locale, or just those who might be affected by the policy being considered? How do we discover the will of the people? Is it reflected in the wishes of those who represent the people (i.e., representatives who the people elect or who are appointed by some legitimate political entity)? Or is it discovered through direct voting on policies, or possibly through public opinion polls or some other process? Because the answers to these questions are not obvious, it presents problems for democratic theory and practice. The difficulty in answering these fundamental questions presents challenges for collective action and decision-making as well as for deciding the role that the will of the people should play in deciding questions of constitutionality.
The field of public choice is useful for getting traction on answering these questions, especially in thinking through the issues associated with defining and determining the will of the people, as well as the implications for judicial deference to the will of the people. Public choice is an interdisciplinary subfield in which political scientists and economists have worked—sometimes together and sometimes separately—to understand the logic underlying processes of collective action.1See generally William C. Mitchell, Virginia, Rochester, and Bloomington: Twenty-Five Years of Public Choice and Political Science, 56 Pub. Choice101, 101–17 (1988) (discussing political scientists’ and economists’ contributions to public choice). Scholars in public choice ask questions like, why do people make some decisions collectively and others individually? How does constitutional structure affect day-to-day politics? What incentives and secondary effects can be expected to occur if a particular policy or regulation is enacted? Most questions in public choice can be boiled down to some version of these questions: how does a set of institutional rules operate, what are its likely consequences within a particular context, and will those consequences align with the intended goals of decisionmakers?2See James M. Buchanan, The Constitution of Economic Policy, 77 Am. Econ. Rev. 243, 248 (1987) (stating that a political economist must focus on the rule structure in society, the consequences of those rules, and whether the rules will be recognized within the “political reality”).
Within the context of a liberal democracy, collective action requires governmental organizations to act in accordance with the interests of the citizens they represent while avoiding taking action that violates the individual rights of any member of that community. The great challenge is that the members of the citizenry vary greatly in their interests and circumstances yet must be treated as equally sovereign in order for public processes to retain a democratic character. The question for public choice scholars then is how effectively democratic institutions for collective action—from local school boards to national governments—can set up and maintain institutions, policies, and practices that are consistent with the will of the people.
In this article, we will draw on public choice literature to explore the question of whether democratic processes are likely to reflect the “will of the people.”3See Peter Boettke & Peter Leeson, An ‘Austrian’ Perspective on Public Choice, in 2 The Encyclopedia of Public Choice 27–29, 31 (Charles K. Rowley & Friedrich Schneider eds., 2004). See generally William F. Shughart II & Robert D. Tollison, Public Choice in the New Century, 124 Pub. Choice 1, 1, 9–13 (2005) (“[P]ublic choices are now seen to differ from private choices, not because people are motivated differently in the two settings, but rather because the institutions of collective decision-making differ fundamentally from the institutions of private decision-making.”). We contend that the ability to act in accordance with the will of the people as the concept is traditionally understood—what we call the strong will of the people—requires knowledge about what the people desire that is simply not intelligible in any way that could guide the actions of elected representatives or government officials. Any claim otherwise necessarily abstracts away from the great diversity of wants and interests that exist within a democratic polity, likely in a way that will be most disadvantageous to minorities who either are or have been prevented from fully participating in political negotiations.
As such, the best hope for democracy is to establish and maintain a constitutional structure that encourages widespread civic participation and discourages any one source of political power from becoming dominant, while vigorously protecting individual rights. This latter caveat is important to prevent democracy from devolving into the tyranny of the majority, where only the will of some people matters. This institutionally focused interpretation—which we call the weak will of the people—suggests the will of the people is reflected in the constitutional order of a society, but not in the particulars of the law, policies, and regulations enacted under the auspices of that constitution. This conception stands in contrast to the traditional “strong” interpretation of the will of the people,4Christopher Bertram, Rousseau’s Legacy in Two Conceptions of the General Will: Democratic and Transcendent, 74 Rev. Pol. 403, 404–05 (2012). which places insurmountable burdens on government officials and establishes unrealistic expectations among individual citizens about how their interests will drive those officials’ choices.
One important implication of this argument is that there is no logical justification for a pattern of judicial deference to legislators on matters of constitutionality. Legislators have no direct access to the will of the people that would justify them holding a unique position as the final arbiter. This is a job that can only be accomplished through the maintenance of an institutional structure that contains many centers of power, seeking balance through processes of competition, cooperation, and contestation.5See Vincent Ostrom, Charles M. Tiebout & Robert Warren, The Organization of Government in Metropolitan Areas: A Theoretical Inquiry, 55 Am. Pol. Sci. Rev. 831, 831–42 (1961). This view is consistent with other public choice analyses of judicial deference,6See Michael C. Munger, A Stream that Rises Above Its Source: Judicial Review from a Public Choice Perspective, 27 Sup. Ct. Econ. Rev. 25, 25–43, 51–55 (2019); William H. Riker & Barry R. Weingast, Constitutional Regulation of Legislative Choice: The Political Consequences of Judicial Deference to Legislatures, 74 Va. L. Rev. 373, 375–79 (1988). including William Riker and Barry Weingast’s view that “legislatures cannot be relied upon to protect citizens’ rights in any area.”7Riker & Weingast, supra note 6, at 374–75. Moreover, given that judges are also not epistemologically positioned to determine the will of the people,8See Bertram, supra note 4, at 410–11. it is unclear that the will of the people should or could play any role in judicial decision-making other than through the mandate to contribute to the preservation of the constitutional order.
Part I of this article will go into further detail on the difficulty of accessing and acting upon the will of the people. In Part II, we will argue for distinguishing between the strong will of the people and the weak will of the people. The strong will of the people—the way the concept is traditionally understood—requires a level of knowledge about individual preferences that could never be satisfied and would result in a disastrous tyranny of the majority if it could. The weak will of the people, however, is the idea that there are general principles of agreement reflected in constitutional rules, and that these shared commitments can be known and considered to reflect the will of the people. Part III will conclude with a discussion of the implication that deferring to the legislature alone on matters of constitutionality would constitute a failure to respect the weak will of the people, which is actually the most meaningful interpretation of the concept.
I. Is There a “Will of the People,” and How Do You Know?
From a public choice perspective, the idea that there is a “will of the people” is at best a useful fiction.9See, e.g., supratext accompanying notes 4–8; cf. Bertram, supra note 4, at 404–05 (“[By vesting decision-making power in the state], a people simply loses its ability to govern itself, loses its moral quality of collective free agency, and reduces itself to a condition of mere slavery, contrary to the essential nature of man.”). Arguably, the concept of the “will of the people” is akin to the concept of the “social welfare function” discussed within welfare economics.10Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, 58 J. Pol. Econ. 328, 334–36 (1950) [hereinafter Arrow, Social Welfare]; see also Kenneth J. Arrow, Social Choice and Individual Values 81 (3d ed. 2012). This function orders all possible social states by incorporating and ranking the preferences and valuations of all the members of a social group.11Arrow, Social Welfare, supra note 10, at 334–35. In so doing, it makes it possible to determine which social state and which range of policies is best (i.e., those policies are best which lead to the most socially desirable state of the world).12Id. As James Buchanan showed in his critique of the concept of social welfare, constructing a social welfare function would require being able to access and compare preferences across persons.13See James M. Buchanan, Positive Economics, Welfare Economics, and Political Economy, 2 J.L. & Econ. 124, 133 (1959); James M. Buchanan, Social Choice, Democracy, and Free Markets, 62 J. Pol. Econ. 114, 117 (1954). The functional approach to law and economics is also critical of efforts to aggregate individual preferences into a useful social welfare function. See generally, e.g., Francesco Parisi, Positive, Normative and Functional Schools in Law and Economics, 18 Eur. J.L. & Econ. 259, 259–72 (2004); Francesco Parisi & Jonathan Klick, Functional Law and Economics: The Search for Value-Neutral Principles of Lawmaking, 79 Chi.-Kent L. Rev. 431–50 (2004). However, unfortunately for that effort, the preferences of the individuals living within a community cannot be publicly revealed in any way that would enable a social scientist or policy maker to add them up and identify the single best decision. Rather, true preferences can only be revealed in moments of choice.14James M. Buchanan, Cost and Choice: An Inquiry in Economic Theory, in 6 The Collected Works of James M. Buchanan 1, 41–42(1999). For Buchanan, expressions of our preferences outside of moments of choice should be discounted because our memories and analytical processes are too flawed, and the temptation to inaccurately represent the strength of our preferences to gain a superior bargaining position is too great.15Id. One implication is that true preferences can only be revealed in collective-choice processes if individuals are directly involved in making the choices that create and enforce law.16See id. For a collective process to reflect the will of all people, then all people would need to be actively involved in decision-making rather than merely represented.
Most legislative actions, however, do not involve the direct participation of all parties. Instead, in large democracies like the United States, representatives are supposed to do their best to act according to the will of the people.17Dwight R. Lee, Politics, Ideology, and the Power of Public Choice, 74 Va. L. Rev. 191, 191 (1988). Of course, the fact that representatives might neglect this duty, pursuing instead their own (ideologically or personally driven) policy preferences or those of certain special interests, is one reason why the policies adopted might not reflect the will of the people.18See, e.g., Gene M. Grossman & Elhanan Helpman, Special Interest Politics 56–61 (2001); Lee, supra note 17. Yet, following Buchanan’s critique of social welfare, there is an even more difficult-to-surmount obstacle that explains why the policies representatives advocate and advance are unlikely to reflect the will of the people: in short, it’s an impossible task. The nature of representative democracy is such that individuals do not make direct choices in the political realm,19James M. Buchanan, Individual Choice in Voting and the Market, 62 J. Pol. Econ. 334, 335 (1954). and the differences between people are too many, varied, and often tacit to be able to make reasonable inferences about what those choices might have been if they had taken place.
Consequently, representatives are limited to making decisions according to their interpretation of the best available information about what their constituents might prefer. This process of interpretation contains multiple opportunities for error. First, the information available to representatives will certainly not be complete, and may not even be an accurate cross-section of the group the representatives purport to represent. The incompleteness of information is true, in large part, because people face extraordinary difficulty in articulating and even in understanding their preferences outside actual acts of choice.20See Mario J. Rizzo & Douglas Glen Whitman, The Knowledge Problem of New Paternalism, 2009 BYU L. Rev. 905, 922–31. However, even if this difficulty could be overcome—or if one is unconvinced of its significance—the difficulty of bias in the availability of knowledge remains.21See François Facchini & Mickael Melki, The Democratic Crisis and the Knowledge Problem, 47 Pol. & Pol’y 1022, 1027–28 (2019); Don Lavoie, Glasnost and the Knowledge Problem: Rethinking Economic Democracy, 11 Cato J. 435, 441–44 (1992); Rizzo & Whitman, supra note 20, at 924–31. The information available to representatives will inevitably be skewed according to who is allowed to speak and which voices are the loudest. Proceeding as if the will of the people can be known and acted upon presumes that a society has satisfactorily resolved the question of which people’s wills should matter. U.S. history is full of examples of some people being intentionally omitted from the political process: women, Native Americans, and the enslaved being some of the most extreme examples.22See Charles W. Mills, The Racial Contract 1–3 (1997); Carole Pateman, The Sexual Contract 2–6 (1988). But even today, governments actively and comfortably exclude people under eighteen, recent immigrants,23See Christopher Bertram, Do States Have the Right to Exclude Immigrants? 31–34 (2018); Ming H. Chen & Hunter Knapp, The Political (Mis)Representation of Immigrants in Voting, 92 U. Colo. L. Rev. 715, 726–41 (2021). and individuals with felony convictions.24See, e.g., U.S. Const. amend. XXVI, § 1 (enshrining by constitutional amendment the right to vote for only those U.S. citizens who are eighteen or older); James A. Gardner, Illiberalism and Authoritarianism in the American States, 70 Am. U. L. Rev. 829, 887–88 (2021) (describing an effort by the Florida state legislature to suppress voting rights of convicted felons).
Second, the process by which political decisions are made amplifies some voices and dampens others, whether or not the effect is intended. The availability of information and legislative attention is particularly affected by the agenda setters who make decisions about legislative debates, committee determinations, and when and if votes will take place.25See Neal Devins, Congressional Fact Finding and the Scope of Judicial Review, in Congress and the Constitution 224–25 (Neal Devins & Keith E. Whittington eds., 2005). Consequently, the bureaucratic processes that determine which issues will be considered for legislative action, in what form those proposals will appear, and when and how they will be voted on have a disproportionate impact over political outcomes.26See id.; William A. Niskanen, Jr., Bureaucracy and Representative Government 48 (1971); Michael F. Altfeld & Gary J. Miller, Sources of Bureaucratic Influence: Expertise and Agenda Control, 28 J. Conflict Resol. 701, 727 (1984). Agenda setting is both a necessary component of representative processes and totally at odds with the fiction—sometimes helpful, sometimes harmful—that all individuals have an equal say in a representative democracy.27See Devins, supra note 25, at 223–25; Miriam Hänni, Responsiveness – To Whom? Why the Primacy of the Median Voter Alienates Minorities, 65 Pol. Stud. 665, 667–68 (2017). There are very few mechanisms through which a group with a sufficiently niche or unpopular view can even push for consideration of an issue, let alone have their perspective fully considered. Like any other organization, a representative government cannot function without some kind of agenda. Somebody has to get everybody into the same room and considering the same issue at the same time. Yet, this power opens the door for bureaucrats and the special interests that may influence them to have a greater impact on democratic processes than the people whose will is supposed to be primary.
Third, representatives must interpret whatever incomplete and biased information they do receive. This process will inevitably be shaped by their own priorities and the various challenges presented by their position, as well as the organizational rules they must follow. Acting according to the will of the people requires an elected representative to follow their constituents’ preferences exactly without regard for their personal career or perspective. This is quite a tall order. Indeed, one of the key insights of public choice is that policy makers are just as likely to be influenced by their own self-interest as anybody else.28See Eyal Zamir & Raanan Sulitzeanu-Kenan, Explaining Self-Interested Behavior of Public-Spirited Policy Makers, 78 Pub. Admin. Rev. 579, 579–81 (2017). The policy makers’ self-interest might include other-regarding preferences, but also might include desires to maximize personal income, power, and budgets, or to increase the likelihood that they are re-elected or otherwise able to maintain their positions.29See Vincent Ostrom & Elinor Ostrom, Public Choice: A Different Approach to the Study of Public Administration, 31 Pub. Admin. Rev. 203, 208–09 (1971). These latter desires may also encompass pursuing a particular ideological agenda, or, as Joseph Kalt and Mark Zupan put it, political actors have opportunities to act on “rational altruistic-ideological promotion of self-defined notions of the public interest.”30Joseph P. Kalt & Mark A. Zupan, Capture and Ideology in the Economic Theory of Politics, 74 Am. Econ. Rev. 279, 298 (1984). As a result, representatives can and often will end up substituting their own preferences for the preferences of their constituents, potentially without even intending to do so.
The median voter theorem suggests that successful politicians will often express and pursue policies that are directed by the median voter, even if those policies are not ultimately manifest in political outcomes.31See Roger D. Congleton, The Median Voter Model, in 2 The Encyclopedia of Public Choice, supra note 3, at 341, 384; Randall G. Holcombe, The Median Voter Model in Public Choice Theory, 61 Pub. Choice 115, 116–17 (1989). In this sense, the median voter theorem—or rather, the political strategy it purports to explain—could be considered a mechanism through which representative democracies reflect the will of the people. However, like the social welfare function, the median voter theorem is arguably better thought of as an illustration of the problem. To the extent it is true that the preferences of the median voter determine which candidates will be presented and which will prevail, then it suggests that the values of those who are not “in the middle” can safely be ignored by candidates seeking office.32See Congleton, supra note 31, at 384. The result is that minorities of all types often will not see their positions reflected by the agents who are supposed to be acting on their behalf.33See Hänni, supra note 27, at 667–68. The representative in this case ends up reflecting the preferences of the dominant middle, but not the wills of those who are different or who prioritize different issues. Perhaps then it is better, from the perspective of the will of the people, if the critics are right that institutions are more determinant of political outcomes than the preferences of the median voter.34See Thomas Romer & Howard Rosenthal, The Elusive Median Voter, 12 J. Pub. Econ. 143, 143–45 (1979).
Admittedly, one possibility is that the above questions have been resolved to the satisfaction of most people in most democratic societies, and that most people in these societies are not concerned with questions about equal representation, agenda control, or the imperfections in the principle-agent relationship between voters and elected representatives. However, another possibility that needs to be taken seriously is that countries like the United States contain deep divisions and conflicting interests, and that this is not a temporary affliction but the inevitable reality of a free and diverse society. In other words, the people of the United States do not have a singular will, and as such the policies adopted by the U.S. government can never reflect the will of the people. Instead, each person has their own distinct will, and the diversity of those interests and perspectives is a reality to be accepted and worked with rather than elided or eliminated.
II. Checks, Balances, and Civil Liberties
The problem of whose will counts and in what measure was a familiar one to the Framers of the U.S. Constitution. James Madison and his Federalist colleagues, for instance, considered the Constitution itself rather than particular acts of legislation to be the ultimate expression of the will of the people.35See Munger, supra note 6, at 31. In arguing in favor of ratification of the Constitution, Alexander Hamilton issued a challenge “to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”36The Federalist No. 1, at 3 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). This ambitious project centered around a desire to balance the sovereignty of the people against the risk of enabling a powerful majority to oppress those who did not agree with them.37See The Federalist No. 10, at 56–61 (James Madison) (Jacob E. Cooke ed., 1961). This makes the U.S. somewhat unique relative to other approaches to democracy that consider “the legislature” and “the people” to be functionally equivalent by definition.38See Munger, supra note 6, at 30–31.
Concerns about the potential for a strong majority to tyrannically oppress the minority suggest that even if the will of the people could be identified, it would not likely be wise to indiscriminately act upon it. Avoiding just such an outcome is why the U.S. Constitution was constructed not as a vehicle for pure direct democracy, but as a complicated structure designed to balance and rotate interests to avoid long-lasting concentrations of power.39See Jon Elster, Tyranny and Brutality of the Majority, in Majority Decisions: Principles and Practices 159, 160 (Stéphanie Novak & Jon Elster eds., 2014); Morton J. Horwitz, Tocqueville and the Tyranny of the Majority, 28 Rev. Pols. 293, 299–300 (1966). Opinions differ about the extent to which the Framers of the U.S. Constitution accomplished this goal. In some ways, particularly in their failure to defend the enslaved and indigenous populations, they failed spectacularly to defend individual rights.40Earl M. Maltz, Slavery, Federalism, and the Structure of the Constitution, 36 Am. J. Legal Hist. 466, 482–83 (1992). However, the intent to empower “the people” and protect individual rights was also historically and rhetorically significant. The Bill of Rights is perhaps the most well-known example of this project.41See U.S. Const. amends. I–X. Regardless of what the majority may desire at any given point in time, no American citizen may be deprived of their fundamental rights as enumerated in that document.42Id.
Regardless of how effective the U.S. Constitution is at delivering on its promise, thinking of constitutional rules as embodying the will of the people, and not just as creating a framework for collective choice where the will of the people can be discovered and advanced, offers a potentially fruitful strategy for addressing the issues associated with the concept of the will of the people. Stated another way, there are at least two ways that we may conceive of the will of the people: (1) strongly, where the policies adopted in a polity are those that the people prefer; or (2) weakly, where the system of rules that govern political action in a polity are those that the people prefer. To act in accordance with a strong will of the people, policy makers would have to know the policies that people actually want. To act consistently with a weak will of the people, however, policy makers would only need to act consistently with the constitutional rules that the people have consented to (either explicitly or through their not having exited the polity).
Constitutional theorists like James Buchanan and Vincent Ostrom sought to understand whether individuals would be able to design rules for government that would be consistent with truly voluntary participation in collective processes.43See James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (1965), reprinted in 2 The Selected Works of Gordon Tullock 3–10 (Charles K. Rowley ed., 2004); Vincent Ostrom, The Meaning of American Federalism: Constituting a Self-Governing Society 20–24 (1991). They were interested in how people could govern together, both in the absence of perfect information about their neighbor’s needs and wants that would enable them to easily identify some kind of collective will, and in the face of the kind of strategic behavior a reasonable person would be likely to resort to in order to accomplish the goals they consider most important.44See generally Buchanan & Tullock, supra note 43. If this was easy to do, there would be no need for mechanisms to resolve disputes. The very fact that we need such mechanisms—such governing apparatuses—suggests that to the extent there is a collective will, it must be brought about through action and negotiation (and constant renegotiation).45See id.
One possibility explored by Buchanan and Gordon Tullock is that individual involvement does not necessarily need to be direct46See id.—a group of people could come to agreement to create a set of rules under which representatives would be empowered to act on their behalf. Under these conditions, the people would not necessarily be expressing their will in what we have called the strong form of the will of the people, but they would be expressing the weak form of the will of the people by agreeing to a set of rules of engagement. In short, although the strong will of the people cannot be satisfied except under a direct democracy with full voluntary participation, the weak will of the people can be satisfied in a constitutional democracy through the constitutional process itself.
The idea that the constitutional process could reflect of the will of the people is based on the presumption that at least at the initial constitutional stage, the potential members of the society had the option to walk away if they believed their interests would not be advanced through the collective choice process being established. This unanimous voluntary participation in the social contract is the only condition under which we can be absolutely sure that the rules agreed to are truly in the interest of all, and that the process was free of predation or coercion.47See id. Of course, as Carole Pateman,48See Pateman, supra note 22, at 2. Charles Mills,49See Mills, supra note 22, at 11–12. and others have noted, many existing political processes—including those that created the U.S Constitution—were carried out with far from universal participation. In the United States, women and racial minorities were entirely excluded from the decision-making process. The fact that these groups have not emigrated and are not in continuous open revolt is sometimes considered evidence that they are tacitly consenting to be governed by the constitutional rules of the United States. This presumption has rightly been criticized for its unrealistic nature and inefficacy as an actual protection.50See A. John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society 199 (Marshall Cohen ed., 1993); A. John Simmons, Tacit Consent and Political Obligation, 5 Phil. & Pub. Affs. 274, 275 (1976). The standard of not being so unhappy with the governance of society that one chooses to uproot their entire life and decamp to a new society, leaving behind work, friends, and roots is not a measure of satisfaction worth getting particularly excited about. It is, however, something.51See Jayme Lemke, Withdrawing Consent: Polycentric Defenses Against Domination, 25 Indep. Rev. 265, 269 (2020). Without at least the opportunity to withdraw from the collective organization, there is even less reason to suspect the government capable of acting according to the will of the people on any level whatsoever.
A number of corollaries follow from the fact that the will of the people is embodied in the system of constitutional rules. Primarily, if obliquely, the ability of the government to act in accordance with the will of the people then depends on the continued maintenance of that system of constitutional rules. The question of what it means to maintain constitutionality is a complicated one that we will not be able to fully address here. However, one obvious place to begin is with those provisions of the Constitution that were intended to be self-enforcing52See Peter T. Leeson, Government, Clubs, and Constitutions, 80 J. Econ. Behav. & Org. 301, 303 (2011).—in other words, the institutional mechanisms designed to align the incentives faced by decisionmakers with the best interest of the citizens they serve. These include—but are not limited to—term limits; the division of authority between federal, state, and local government; provisions that limit the scope of particular governments’ powers; and the “checks and balances” associated with dividing governmental power into multiple branches of government, sometimes containing their own further subdivisions (such as a bicameral legislature).
These provisions—limits on power, divided authority, checks and balances, etc.—all serve the function of limiting the ability of any one group to have their preferences constantly trump in political negotiations. Further, they help to ensure that the laws coming out of the legislature, the policies pursued by the federal government, and the judgements made by the judicial branch are constitutional by creating mechanisms through which no official or governing body is considered to be above challenge. In short, these mechanisms ensure that the weak will of the people is actually embodied in the Constitution. Without them, the rules established in the U.S. Constitution are simply meaningless etchings on parchment, and the weak will of the people—the only actionable version of the concept—is lost.
Rather than the resolution of a problem, however, this is truly only the beginning. If we are correct that the will of the people exists only in the constitutional structure of government rather than the specific actions of legislatures, then protecting the will of the people becomes primarily a matter of constitutional interpretation. This raises many thorny questions, including: What is the constitutional order? Is it reflected in written documents, or is there a more fundamental rule of recognition that roots the constitutional order in a set of deeper, possibly tacit understandings about what can be accepted in a democratic society?53See H. L. A. Hart, The Concept of Law 124–36 (Penelope A. Bulloch & Joseph Raz eds., 3d ed. 2012). Who are we asking to identify and enforce this constitutional order? And are we just pushing the problem back a level (i.e., will judges attempting to uphold the constitution not face some of the same obstacles as legislators in their efforts to identify the constitutional order and support it in an unbiased way)?
Addressing these questions of constitutional interpretation and maintenance will require much more attention than we are able to offer here. However, our argument does rule out some possible answers to the question of how the judiciary can uphold this duty. The prerogative to defend the Constitution cannot be met by committing to defer to the legislature, or to any other actor or organization within the government, because the strong will of the people is unknowable and unactionable. We will conclude with some final words on this matter.
III. Implications for Judicial Deference on Questions of Constitutionality
If the will of the people is indeed as difficult to access as our interpretation suggests, then government has no hope of following the will of the people as it is commonly understood. We have called this unattainable interpretation of the will of the people the “strong” will. However, through adherence to constitutional agreements that come much closer to the level of generally agreed-upon principle, it may be possible for the branches of government, as a whole, to function in a way that maintains consistency with what we have called the “weak” will of the people. This weak will, limited in scope and imperfect in application as it may be, is the will by which the people of a country have chosen to live together under the auspices of a system of government.
Under this conception of what it means to adhere to the will of the people, it becomes nonsensical to think of the will of the people being maintained by any one branch of the government. The weak will of the people is not the purview of the judiciary or the legislature alone, but instead is located within the structure of government itself. In other words, the weak will of the people is a function of the rules of the game rather than a function of the actions that take place after those rules have been established. Buchanan distinguished between post-constitutional politics—voting, legislation, regulation, and the other actions we associate with politics and political strategy—and the constitutional politics that determine the rules under which those post-constitutional activities take place.54See Peter J. Boettke & Jayme S. Lemke, Constitutional Hopes and Post-Constitutional Fears: The Role of Rational Construction in Skeptical Public Choice, in Buchanan’s Tensions: Reexamining the Political Economy and Philosophy of James M. Buchanan 51, 52 (Peter J. Boettke & Solomon Stein eds., 2018). The will of the people is constitutional, not post-constitutional.55See Buchanan & Tullock, supra note 43; Adam Martin & Diana Thomas, Two-Tiered Political Entrepreneurship and the Congressional Committee System, 154 Pub. Choice 21, 22 (2013).
Therefore, the primary implication of our argument is that the judiciary shouldn’t be concerned with the strong will of the people at all. They are as epistemically incapable of discovering it as everyone else, as is the legislature, despite their best efforts. Contemporary debates about polarization and whether so many people could really hold such-and-such political view drive home the fact that we live in a society where others—and sometimes many others—will not share our values or agree about the extent to which they should be reflected through political action. Attempting to integrate the strong will of the people into our governing institutions invites in the prevailing views of the moment, including those which history will find to have been sorely mistaken.
Fortunately, there is an alternative. The judicial branch will best be able to protect the principle of government “by the people” by directing their energy away from the strong will of the people and towards the weak will of the people, as embodied in the governing constitutional rules. By monitoring and upholding the constitutionality of legislative and executive actions, the judiciary serves as a valuable check against both trendy ideologies and the special interests that can influence legislation. In doing so, they play a valuable role in a system-wide process that defends the weak will of the people by ensuring that all branches of the government remain confined to the constitutional mandates through which the people imbued them with power. This role is of course incompatible with a principle of deference to Congress or any other organization or entity.
If this constitutional process works as intended, then we should see a greater stability in judicial decisions than in legislative actions. The judiciary may at times seem frustratingly slow to adapt, but this is by design. The judiciary acts as a kind of safety rail that prevents power from becoming too concentrated among any one group for too long. This fundamental feature of American government, designed to create the most equal political footing possible, is essential to the maintenance of the civil liberties and constitutional protections that are a hallmark of American citizenship.