Reason-giving and accountability

Minnesota Law Review

Volumn 93, Issue 4, 2009, Pages 1253-1325

  Staszewski, Glen ^a  

^a MICHIGAN STATE UNIVERSITY   (United States)

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EID: 67549091636     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (414)

1. See Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2073 (2005) (recognizing that "[t]he idea of accountability is very much in fashion in legal and political thought these days," and that "the term is used in a variety of different ways").
2. See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434, 442 (1998) (explaining that under theories of popular sovereignty, "a regime is legitimate if people are made to follow only those rules to which they have consented").
3. See infra notes 16-40 and accompanying text.
4. See infra Parts II, IV.A. For leading interdisciplinary sources on this point, see Jane S. Schacter, Political Accountability, Proxy Accountability, and the Democratic Legitimacy of Legislatures, in THE LEAST EXAMINED BRANCH 45, 47 (Richard W. Bauman & Tsvi Kahana eds., 2006);
5. and Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWAL. REV. 1287, 1304-29 (2004).
6. See infra Part III.
7. See Jane S. Schacter, Ely and the Idea of Democracy, 57 STAN. L. REV. 737, 755 (2004) ("Accountability ⋯ has gotten a fairly easy pass in the legal scholarship on democracy and constitutionalism.").
8. For outstanding contributions in each of these genres, see, respectively, Schacter, supra note 4, at 45-47, and AMY GUTMANN & DENNIS THOMPSON, DEMOCRACY AND DISAGREEMENT (1996).
9. See, e.g., Lewis v. Casey, 518 U.S. 343, 388 (1996) ("[J]udges occupy a unique and limited role, one that does not allow them to substitute their views for those in the executive and legislative branches ⋯ who have the constitutional authority and institutional expertise to make these uniquely nonjudicial decisions and who are ultimately accountable for these decisions.").
10. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 190-91 (2000) (Breyer, J., dissenting) (claiming that the FDA's statutory authority to regulate tobacco should have been upheld, partly because the responsible administrative officials and their elected supporters would be held politically accountable for a policy decision of this magnitude);
11. Romer v. Evans, 517 U.S. 620, 652-63 (1996) (Scalia, J., dissenting) (criticizing the majority's decision to invalidate a policy choice by "the people of Colorado" on the grounds that "it [is] no business of the courts (as opposed to the political branches) to take sides in [a] cultural war" and claiming that the decision was "an act, not of judicial judgment, but of political will").
12. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 480 (2003) ("Post-Bickel, scholars began to distrust not only judicial use of individual rights to invalidate popularly enacted statutes, but any policy decision made by unelected officials.");
13. Jonathan T. Molot, Ambivalence About Formalism, 93 VA. L. REV. 1, 2 (2007) (identifying efforts to "minimize judicial intrusions into the political process" in different fields of modern public law in response to the core problem of justifying judicial authority in "a post-realist age ⋯ when judging is understood to be an active, creative enterprise").
14. See, e.g., DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION (Adam Przeworski et al. eds., 1999);
15. PUBLIC ACCOUNTABILITY (Michael W. Dowdle ed., 2006). The latter volume includes some contributions by legal scholars.
16. See supra note 6 and accompanying text.
17. See Rebecca L. Brown, Accountability, Liberty, and the Constitution, 98 COLUM. L. REV. 531, 532 (1998) ("The vast majority of theorists have failed to challenge [Alexander] Bickel's basic assumption, that political accountability is the sine qua non of legitimacy in government action.");
18. infra notes 20-23 and accompanying text.
19. See Rubin, supra note 1, at 2077 ("One of the most important functions that elections do serve is to solve the problem of succession.").
20. See Brown, supra note 13, at 565 ("Elections provide the people with an opportunity to punish [representatives] who have violated their duty by invading the liberties of the people."). For a comprehensive development of this point, see Id. at 565-71.
21. See Erwin Chemerinsky, The Supreme Court, 1988 Term-Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 66-68 (1989) (describing these developments).
22. For an iconic decision that signified acceptance of this view by the Supreme Court, see Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
23. See, e.g., ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 145-48 (1956) (discussing the role of special interest groups in the making of government decisions).
24. See Chemerinsky, supra note 16, at 68 ("If courts cannot discern true values, because none exist, and if majoritarian decisionmaking is the ideal, judicial review is nothing but the substitution by unelected judges of their values for those of popularly elected legislatures.");
25. see also Brown, supra note 13, at 538-39 (documenting the historical development and recent dominance of "the majoritarian paradigm" in constitutional theory and explaining that for its adherents, "democratic government means that decisions affecting the polity will be made by accountable officials; anything else runs counter to the very defining principles of this nation").
26. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16-23 (Yale Univ. Press 2d ed. 1986) (1962).
27. See Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 630 (1993) [hereinafter Friedman, Dialogue] ("The countermajoritarian difficulty posits that the 'political' branches are 'legitimate' because they further majority will, while courts are illegitimate because they impede it.");
28. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153, 155 (2002) [hereinafter Friedman, Academic Obsession] ("For decades, legal academics have struggled with the 'countermajoritarian difficulty': the problem of justifying the exercise of judicial review by unelected and ostensibly unaccountable judges in what we otherwise deem to be a political democracy.");
29. Jane S. Schacter, Lawrence v. Texas and the Fourteenth Amendment's Democratic Aspirations, 13 TEMP. POL. & CIV. RTS. L. REV. 733, 762 (2004) ("The idea that legislators are accountable and courts are not lies at the very heart of the countermajoritarian difficulty.").
30. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST (1980).
31. See Schacter, supra note 21, at 762 ("Despite the axiomatic character that Bickel and others seem to give this notion of accountability, constitutional scholars have barely scratched the surface in examining the quality and quantity of political accountability that actually exists.");
32. supra note 13 and accompanying text.
33. Bressman, supra note 10, at 490.
34. See Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 58-70 (1995) (arguing for "[a] unitary, nationally representative executive");
35. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2331-39 (2001) (describing how "presidential administration promotes accountability");
36. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 91-106 (1994) (discussing the historical development of "presidential authority" with respect to administration agencies);
37. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 95 (1985) ("[I]t may make sense to imagine the delegation of political authority to administrators as a device for improving the responsiveness of government to the desires of the electorate."). But see Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. 1217 (2006) (challenging the claims and implications of this literature).
38. See Bressman, supra note 10, at 491.
39. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
40. See Id. at 843-44.
41. Id. at 865-66.
42. See Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 594 (1995) ("Our legal culture's understanding of the link between statutory interpretation and democratic theory verges on the canonical and is embodied in the principle of 'legislative supremacy."');
43. see also Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 GEO. L.J. 281, 282 (1989) (defending a "weak" version of legislative supremacy that "precludes judicial policymaking only when a statutory directive is clear" (footnote omitted)).
44. See Farber, supra note 30, at 292-93 ("Because the supremacy principal is fundamental to our institutional framework, violations of the principal defeat justified expectations and impair legal stability.").
45. See Schacter, supra note 30, at 594 ("Fidelity to the legislature is thought to satisfy the demands of democratic theory by allowing popularly elected officials, presumed to be accountable to their constituents, to make policy decisions.").
46. See, e.g., Frank H. Easterbrook, The Supreme Court 1983 - Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 60 (1984) ("Judges must be honest agents of the political branches. They carry out decisions they do not make.");
47. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2389 (2003) ("In a system marked by legislative supremacy (within constitutional boundaries), federal courts act as faithful agents of Congress.").
48. See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 15-22 (2001).
49. See Manning, supra note 33, at 2387-91;
50. John C. Nagle, Textualism's Exceptions, ISSUES IN LEGAL SCHOLARSHIP, 2002, at 1, 2, http://www.bepress.com/ils/ iss3/artl5/ ("[W]hen the statutory text admits of no ambiguity, then the results of that interpretation - absurd or otherwise - become irrelevant to the textualist.").
51. See Elizabeth Garrett, Legal Scholarship in the Age of Legislation, 34 TULSA L.J. 679, 685 (1999) ("[M]ethods like textualism ⋯ are best understood as efforts to improve the quality of the decisionmaking in the politically accountable branches.");
52. Jonathan T. Molot, The Rise and Fall of Textualism. 106 COLUM. L. REV. 1, 23-29 (2006) (describing textualism's efforts in "cabining judicial leeway");
53. Schacter, supra note 30, at 642 (explaining that Justice Scalia's approach to statutory interpretation reflects "his persistent suspicion that legislators are chronically tempted to pass off difficult choices of policy to others and that such behavior sabotages the project of electoral accountability").
54. See Frank H. Easterbrook, Judicial Discretion in Statutory Interpretation, 57 OKLA. L. REV. 1, 9-10 (2004) (claiming that "tenure" provides "a powerful reason not to allow judges to make policy" in a representative democracy because "[w]hen judges make policy - which is, after all, what discretion in interpretation means - you can't get rid of them").
55. See Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 VAND. L. REV. 395, 412-20 (2003) (describing the typical perception of direct democracy and its increased use in recent years).
56. Jane S. Schacter, The Pursuit of 'Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107, 151 (1995) (citing In re Estate of Thompson, 692 P.2d 807, 808 (Wash. 1984)). Although direct democracy has been criticized for other reasons, the ballot initiative process is typically considered above reproach on grounds of democratic accountability.
57. See Bernard W. Bell, Marbury v. Madison and the Madisonian Vision, 72 GEO. WASH. L. REV. 197, 233 (2003) ("The apotheosis of accountability is the plebiscite, and other forms of direct democracy.").
58. See Christopher J. Peters, Assessing the New Judicial Minimalism, 100 COLUM. L. REV. 1454, 1477 (2000) ("Accountability, of course, would not be an issue in a direct democracy, in which every citizen participated directly in making laws.").
59. See Clark, supra note 2, at 437 ("The populist case for direct democracy is straightforward and appealing: direct democratic processes are at some level more democratic, more legitimate, than representative institutions, because they are more directly responsive to the people.");
60. Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1513 (1990) (recognizing that if "[m]ajoritarian democracy ⋯ is the core of our constitutional system ⋯ the plebiscite certainly seems to have a strong claim to being its most treasured instrument").
61. Most significantly, the American Constitution prohibits direct democracy at the federal level.
62. See U.S. CONST, art. I, § 1.
63. See Cynthia Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 987-88 (1997) (recognizing that courts and commentators have increasingly looked to the President "to supply the elusive essence of democratic legitimation" in the modern regulatory state because "[t]he President, and the President alone, represents the entire citizenry" and is therefore uniquely situated "to infuse into regulatory policymaking the will of the whole people");
64. supra notes 24-29 and accompanying text (describing the perceived political accountability of the President).
65. See U.S. CONST, art. I, § 7;
66. Heckler v. Chaney, 470 U.S. 831 (1985) (holding that non-enforcement decisions are presumptively immune from judicial review under the APA).
67. See, e.g., Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HAEV. L. REV. 1359, 1360-62 (1997) (describing the arguments in support of executive non-deference to Supreme Court constitutional interpretation, but arguing for the primacy of judicial interpretation);
68. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 343-45 (1994) (concluding that the President should have the power to review the decisions of the judicial and legislative branches).
69. See supra notes 27-29 and accompanying text (discussing Chevron);
70. see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000) ("[N]o matter how 'important, conspicuous, and controversial' the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Con-gress." (citation omitted)).
71. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2521-22 (2007) (5-4 decision) (reversing the Ninth Circuit's conclusion that the transfer of power was arbitrary and capricious in violation of the APA).
72. See Gonzales v. Carhart, 127 S. Ct. 1610, 1632 (2007) (5-4 decision) (rejecting a facial challenge to the constitutional validity of the Partial Birth Abortion Act of 2003).
73. See Zuni Pub. Sch. Dist. No. 89 v. Dept. of Educ, 127 S. Ct. 1534. 1536-37 (2007) (5-4 decision) (upholding the Secretary's approach on the grounds that it reflected a reasonable interpretation of an ambiguous statute). But see Id. at 1551 (Scalia, J., dissenting) (claiming that the Secretary's interpretation was contrary to the plain meaning of the statute and the majority's decision was "nothing other than the elevation of judge-supposed legislative intent over clear statutory text").
74. I must confess that I am not the first "comedian" to use this specific joke.
75. See Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 YALE L.J. 1707, 1729 n.110 (2002). I have no serious ambitions, however, of being the last comic standing.
76. See ARTHUR LUPIA & MATHEW D. MCCUBBINS, THE DEMOCRATIC DILEMMA 17 (1998) ("The claim that citizens lack political information has a long and respected history.");
77. Schacter, supra note 4, at 47 ("It is an article of faith among political scientists that citizens are woefully uninformed about politics, and scholars have rarely resorted to understatement in characterizing the public's knowledge gaps.");
78. Somin, supra note 4, at 1304 ("The most important point established in some five decades of political knowledge research is that the majority of American citizens lack even basic political knowledge."). For the leading work of political science on this subject, see MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS (1996).
79. Somin, supra note 4, at 1304-06, 1316-17.
80. Id. at 1305-06.
81. See, e.g., John A. Ferejohn, Information and the Electoral Process, in INFORMATION AND DEMOCRATIC PROCESSES 3, 3 (John A. Ferejohn & James H. Kuklinski eds., 1990) ("Decades of behavioral research have shown that most people know little about their elected officeholders, less about their opponents, and virtually nothing about the public issues that occupy officials from Washington to city hall.").
82. See Schacter, supra note 4, at 47 (explaining that "[v]oters cannot hold legislators responsible without sufficient information about what legislators have, in fact, done" and that the necessary "information consistently eludes the electorate");
83. see also Jane S. Schacter, Accounting for Accountability in Dynamic Statutory Interpretation and Beyond, ISSUES IN LEGAL SCHOLARSHIP, 2002, at 1, 13, http://www.bepress.com/cgi/ viewcontent.cgi?article=1024&context=ils (explaining an inability "to find any studies looking in any detail at the levels of citizen awareness of legislation written and passed by legislators" with the hypothesis that the public's lack of "specific information about legislation⋯ seems too obvious to warrant study").
84. See Schacter, supra note 4, at 59-63 (canvassing political science literature on how public policy is formed and identifying "problems with the ability of candidates ⋯ to reliably identify the content or strength of public attitudes on key issues").
85. JOHN R. ZALLER, THE NATURE AND ORIGINS OF MASS OPINION 76-80 (1992).
86. See LAWRENCE R. JACOBS & ROBERT Y. SHAPIRO, POLITICIANS DON'T PANDER 112, 115, 119-20 (2000) (describing how the Clinton White House tried to influence public opinion about health care reform through analyzing polling data and other methods).
87. See Schacter, supra note 4, at 62-63 (describing recent political science literature that questions "the notion that the public has extant views that are tapped into by challengers or reporters who draw attention to incumbents' votes," and explaining that "public opinion may be a considerably more top-down affair, one in which politicians (among others) actively try to shape and sway public opinion").
88. See Id. at 47 ("[S]orting out who is responsible for particular public policies is formidably difficult in the context of a multimember legislature, multibranch government, and federal system.").
89. See supra note 47 and accompanying text.
90. See Somin, supra note 4, at 1315 ("[P]ast studies have repeatedly found that citizens have, at best, a very limited knowledge of how authority over issue areas is distributed in our complex political system.").
91. These include federalism decisions by the Supreme Court, see Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992), as well as arguments in favor of reviving the nondelegation doctrine and adopting the theory of the unitary executive in constitutional law and strictly adhering to formal methods of statutory interpretation. For prominent examples of each these respective arguments, see DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY 99-106 (1993);
92. Calabresi, supra note 25, at 42-45;
93. and Manning, supra note 33, at 2437.
94. See U.S. CONST, amend. XXII.
95. See Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 623-30 (2002) (describing the relation between increased gerrymandering and incumbent reelection rates);
96. Richard H. Pildes, The Supreme Court, 2003 Term - Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 59-64 (2004) (explaining how gerrymandering has increasingly lowered the level of competition in political races).
97. See Schacter, supra note 6, at 758-59 (explaining that "the very idea of accountability uncritically assumes a retrospective focus" that implicates the debate in political science between the "selection or mandate view" and the "sanctions or accountability" view of voter behavior).
98. For descriptions of this "bundling" problem, see Farina, supra note 43, at 998 ("[Bundling] precludes any facile translation of election results into 'the people's will' on specific policy issues ⋯.");
99. and Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 197-200 (1994) (describing the limited role of policy considerations in presidential elections).
100. The administrative law literature on this topic tends to focus on the question of whether agency officials are "accountable" to their political principals. The basic theory is that if elected representatives are accountable to voters, and agencies are, in turn, accountable to elected representatives, then agency decisions have democratic legitimacy on the grounds that they are sufficiently responsive to the preferences of citizens. See, e.g., McNollgast, The Political Economy of Law: Decision-Making by Judicial, Legislative, Executive and Administrative Agencies, in 2 HANDBOOK OF LAW AND ECONOMICS 1651, 1663 (A. Mitchell Polinsky & Stephen Shavel eds., 2007). My primary claim in this Article is that elected representatives are not politically accountable to the voters for their specific policy decisions. Accordingly, the "chain of accountability" that is envisioned by such theories of bureaucratic legitimacy is broken, and agency decisions cannot plausibly be connected to the will of the people on this basis. The extent to which agency decisions are controlled by elected officials is therefore beyond the scope of this Article. Nonetheless, to the extent that agency decisions are controlled by elected officials and elected officials are not politically accountable to the voters, the "logic of collective action" would suggest that this form of political control will be affirmatively problematic in the absence of other mechanisms for holding public officials accountable for their decisions. See. Id. at 1714 ("If elected officials are a willing co-conspirator in agency capture, evidence that they influence policy will not assuage fears that the public interest is subverted.").
101. See Gonzales v. Carhart, 127 S. Ct. 2518, 2521-22 (2007);
102. Massachusetts v. EPA, 127 S. Ct. 1438, 1440-41 (2007).
103. Massachusetts v. EPA, 127 S. Ct. at 1450.
104. See George F. Bishop et al., What Must My Interest in Politics Be If I Just Told You "IDon't Know"?, 48 PUB. OPINION Q. 210 (1984).
105. Cf. Schacter, supra note 4, at 66 (pointing out that primary elections may be "the more important elections in contemporary politics" in light of "the prevalence of safe seats in Congress").
106. See Id. at 50 (examining whether recent work in political science might provide a basis for "proxy theories of accountability by identifying substitutes for the kind of informational environment that might make actual accountability possible" (emphasis omitted)).
107. See, e.g., LUPIA & MCCUBBINS, supra note 51, at 64 (explaining that concepts like reputation, party, or ideology are useful heuristics if they convey information about knowledge and trust).
108. See Schacter, supra note 4, at 51-52.
109. See Somin, supra note 4, at 1320-23;
110. see also Schacter, supra note 4, at 64-65 (recognizing that "[vjarious scholars make the basic point that it is difficult for voters to use shortcuts well when they lack the necessary background knowledge to make sense of the shortcuts themselves," and observing that "[t]herein lies the paradox: The voters arguably most in need of cues are also those least able to make good use of them").
111. See Schacter, supra note 4, at 66-68.
112. See Id. at 65-68.
113. See ZALLER, supra note 57, at 244-45 (discussing the importance of name recognition in House elections);
114. Schacter, supra note 4, at 65 (explaining that the performance of the economy is a "venerable cue" in presidential elections even though experts have concluded that the President has an exceedingly modest ability to control short-term economic performance).
115. See Schacter, supra note 4, at 50 (describing the possibility of "accountability through prediction").
116. See R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 3-16, 82-87 (1990);
117. MORRIS P. FIORINA, REPRESENTATIVES, ROLL CALLS, AND CONSTITUENCIES 43-63 (1974);
118. V.O. KEY, JR., PUBLIC OPINION AND AMERICAN DEMOCRACY 496-99 (1961);
119. JOHN W. KINGDON, CONGRESSMEN'S VOTING DECISIONS 67-68 (3d ed. 1989);
120. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 36-37 (1975) ("The ultimate concern ⋯ is not how probable it is that legislatures will lose their seats but whether there is a connection between what they do in office and their need to be reelected.").
121. See Schacter, supra note 4, at 50 ("On this view, politicians' steady contemplation of potential voter preferences might support a version of accountability, even if voters themselves never assert or even perceive those preferences.").
122. See Id. at 54-63 (rejecting the possibility of achieving accountability through prediction based on the problems associated with implementing the theory and its propensities to accept existing inequalities and encourage manipulative behavior by elected officials and other elites).
123. See Id. at 59-63;
124. supra notes 56-59 and accompanying text.
125. See MORRIS P. FIORINA, CULTURE WAR? 55-56 & n.5 (2005) (reporting that "large majorities of Americans have consistently registered opposition to this particular procedure," and suggesting that a focus on this procedure by pro-life groups may have been responsible for moving overall public opinion on abortion "a bit in a conservative direction in the late 1990s").
126. See Id. at 54-56 (reporting that "huge majorities" of Americans consistently support legal access to abortions when "the woman's health is seriously endangered").
127. See Staszewski, supra note 38, at 420-35 (describing the dominant role and substantial influence of initiative proponents);
128. see also DAVID S. BRODER, DEMOCRACY DERAILED 91-161 (2000) (describing the "initiative war in close-up");
129. Philip P. Frickey, Interpretation on the Borderline: Constitution, Canons, Direct Democracy, 1996 ANN. SURV. AM. L. 477, 519 ("Direct democracy consists of two separate processes: proposal by well-organized interests and ratification by the electorate.");
130. Schacter, supra note 39, at 111 ("[T]he direct lawmaking process gives powerful leverage to initiative drafters, who are situated to construct a phantom popular intent through strategic drafting.").
131. See Glen Staszewski, The Bait-and-Switch in Direct Democracy, 2006 WIS. L. REV. 17, 32-39 (describing this problem).
132. See Arthur Lupia & John G. Matsusaka, Direct Democracy: New Approaches to Old Questions, 7 ANN. REV. POL. SCI. 463, 467-70 (2004) (reporting that recent studies have questioned the notion that the absence of detailed knowledge about the substance of ballot measures prevents the electorate from voting consistent with its preferences);
133. see also SHAUN BOWLER & TODD DONOVAN, DEMANDING CHOICES 21-42 (1998);
134. LUPIA & MCCUBBINS, supra note 51;
135. Arthur Lupia, Shortcuts Versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Elections, 88 AM. POL. SCI. REV. 63, 72 (1994) ("[T]he availability of certain types of information cues allows voters to use their limited resources efficiently while influencing electoral outcomes in ways that they would have if they had taken the time and effort necessary to acquire encyclopedic information.").
136. WORDPERFECT 10 WORDPROCESSOR DICTIONARY. Although the source of this quotation shows that it was incredibly easy to find a definition of accountability that comports with my view, more sophisticated examples are certainly available. See, e.g., Mark Seidenfeld, Cognitive Loafing, Social Conformity, and Judicial Review of Agency Rulemaking, 87 CORNELL L. REV. 486, 509-12 (2002) (explaining that psychological studies of "accountability" use the term to refer "to the implicit or explicit expectation that one may be called on to justify one's beliefs, feelings, and actions to others," and noting that although the term "also usually implies that people who do not provide a satisfactory justification for their actions will suffer negative consequences," those consequences need not be material and may include contemptuous glances or even feelings of disappointment in one's own performance) (quoting Jennifer S. Lerner & Philip E. Tetlock, Accounting for the Effects of Accountability, 125 PSYCHOL. BULL. 255, 255 (1999)).
137. Cf. Glen Staszewski, Avoiding Absurdity, 81 IND. L.J. 1001 (2006) (providing a theoretical defense of the canon of statutory interpretation that authorizes the judiciary to deviate from the "plain meaning" of statutory language to avoid "absurd results").
138. See Jon Elster, Deliberation and Constitution Making, in DELIBERATIVE DEMOCRACY 97, 104 (Jon Elster ed., 1998) ("Because there are powerful norms against naked appeals to interest or prejudice, speakers have to justify their proposals by the public interest."). For influential ideals of this requirement, see GUTMANN & THOMPSON, supra note 7, at 52-94 (describing a principle of "reciprocity," which requires citizens and officials to "appeal to reasons or principles that can be shared by fellow citizens who are similarly motivated" when they "make moral claims in a deliberative democracy");
139. Joshua Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY, supra, at 185, 193-98 (describing a deliberative process in which participants regard one another as free, equal, and reasonable "in that they aim to defend and criticize institutions and programs in terms of considerations that others, as free and equal, have reason to accept, given the fact of reasonable pluralism and on the assumption that those others are themselves concerned to provide suitable justifications" (emphasis omitted));
140. John Rawls, The Idea of Public Reason Revisited, 64 U. CHI. L. REV. 765, 773 (1997) ("A citizen engages in public reason ⋯ when he or she deliberates within a framework of what he or she sincerely regards as the most reasonable political conception of justice, a conception that expresses political values that others, as free and equal citizens might also reasonably be expected reasonably to endorse.").
141. See Cass R. Sunstein, Naked Preferences and the Constitution, 84 CO-LUM. L. REV. 1689 (1984) ("If naked preferences are forbidden ⋯ and the government is forced to invoke some public value to justify its conduct, government behavior becomes constrained.").
142. See Elster, supra note 92, at 100 ("The mere fact that an assembly of individuals defines its task as that of deliberation rather than mere force-based bargaining exercises a powerful influence on the proposals and arguments that can be made.").
143. This is an essential component of civic republican theory.
144. See Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1531-32 (1992);
145. Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1547-51 (1988) [hereinafter Sunstein, Republican Revival]; Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 31-32 (1985) [hereinafter Sunstein, Interest Groups].
146. See Elster, supra note 92, at 104 (claiming that the obligation to provide a public-regarding justification creates an incentive for speakers to modify their positions in a less selfish direction because "a perfect coincidence between private interest or prejudice and impartial argument is suspicious").
147. See GUTMANN & THOMPSON, supra note 7, at 43 ("Through the give and take of argument, citizens and their accountable representatives can learn from one another, come to recognize their individual and collective mistakes, and develop new views and policies that are more widely justifiable.");
148. James D. Fearon, Deliberation as Discussion, in DELIBERATIVE DEMOCRACY, supra note 92, at 44, 52 ("[O]ne reason a group might want to discuss something rather than simply voting on it is to lessen the effects of bounded rationality, and discussion may serve this purpose, even when there are known conflicting interests in the group.");
149. Bernard Manin, On Legitimacy and Political Deliberation, 15 POL. THEORY 338, 350 (Elly Stein & Jane Mansbridge trans., 1987) ("[D]uring political deliberation, individuals acquire new perspectives not only with respect to possible solutions, but also with respect to their own preferences");
150. Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 YALE L.J. 1617, 1635-37 (1985) (explaining that "[d]uring the course of deliberation, people may discover both new information and new perspectives about what is at stake in the decision before them," which may lead them both "to modify their choice of means for achieving their ends" and "perhaps to reconsider those ends").
151. See Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 641 (1995).
152. See Id. at 649 ("[G]iving a reason creates a prima facie commitment on the part of the reason giver to decide subsequent cases in accordance with that reason.").
153. For an extensive discussion of "the value of publicity" in deliberative democracy, as well as some potentially legitimate exceptions to this general principle, see GUTMANN & THOMPSON, supra note 7, at 95-127. For a recent discussion of the potential drawbacks of public deliberation, see ADRIAN VER-MEULE, MECHANISMS OF DEMOCRACY 195 (2007).
154. See GUTTMAN & THOMPSON, supra note 7, at 15, 56.
155. See supra notes 92-95 and accompanying text.
156. See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy, in THE GOOD POLITY, 17, 21 (Alan Hamlin & Philip Pettit eds., 1989);
157. Manin, supra note 97, at 340, 388;
158. see also CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 17 (1993) ("In American constitutional law, government must always have a reason for what it does.")-
159. See Manin, supra note 97, at 341-44.
160. See Id. at 349-50.
161. See generally Rebecca L. Brown, The Logic of Majority Rule, 9 U. PA. J. CONST. L. 23 (2006).
162. Cohen, supra note 103, at 22;
163. see also Manin, supra note 97, at 359-60 (explaining that the principle of majority rule is only justified if "[t]he decision results from a [deliberative] process in which the minority point of view was also taken into consideration").
164. For these respective arguments, see Jerry L. Mashaw, Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance, 76 GEO. WASH. L. REV. 99, 116 (2007);
165. Brown, supra note 106, at 41.
166. Cf. Mashaw, supra note 108, at 124 (recognizing that "[t]he alternative to will-based democratic theories are theories based on some vision of public reason," and claiming that "administration without reason cannot meet the challenge of defending its democratic legitimacy").
167. Cf. GUTMANN & THOMPSON, supra note 7, at 142-43 (describing "the reiteration of deliberation" and explaining that "[i]nstead of the arbitrary moments of accountability that elections offer, deliberative democracy provides an ongoing process" that "continues through stages, as officials present their proposals, citizens respond, officials revise, citizens react, and the stages recur").
168. See infra notes 185-88 and accompanying text (describing the American public law system).
169. See infra notes 183-89 and accompanying text (endorsing a framework of separated powers that envisions "a checking and balancing circle of deliberative circles").
170. See John Gardner, The Mark of Responsibility (with a Postscript on Accountability), in PUBLIC ACCOUNTABILITY, supra note 11, at 220, 220-43.
171. See CHARLES TILLY, WHY? 8 (2006) ("While, by some definitions, other primates employ language, tools, and even culture, only humans start offering and demanding reasons while young, then continue through life looking for reasons why.");
172. Gardner, supra note 113, at 221 ("As rational beings we cannot but aim at excellence in rationality.").
173. See GUTMANN & THOMPSON, supra note 7, at 128-29 ("Representatives are first of all accountable to voters, and to others with whom they have some special relationship (such as supporters of their party).").
174. Cf. Sunstein, Interest Groups, supra note 95, at 41-43 (describing Madison's vision of representation).
175. See supra notes 106-07 and accompanying text.
176. See GUTMANN & THOMPSON, supra note 7, at 144-64 (discussing "the problem of constituency" in a deliberative democracy and claiming that the principle of accountability requires that "representatives justify their actions from a moral point of view, which implies that they owe an account not only to their electoral constituents but also to what we may call their moral constituents - citizens in other states and other nations, groups of disadvantaged citizens, and citizens yet to be born").
177. See Sunstein, Republican Revival, supra note 95, at 1549-50 ("The antonym of deliberation is the imposition of outcomes by self-interested and politically powerful private groups."). On the respect that is fostered by reasoned deliberation, see GUTMANN & THOMPSON, supra note 7, at 18 ("When citizens deliberate in democratic politics, they express and respect their status as political equals even as they continue to disagree about important matters of public policy.");
178. Cohen, supra note 92, at 186 (explaining that in the deliberative conception of democracy, "citizens treat one another as equals ⋯ by offering them justifications for the exercise of collective power framed in terms of considerations that can, roughly speaking, be acknowledged by all as reasons").
179. See, e.g., Manin, supra note 97, at 349-64 (explaining how deliberation can shape individual preferences and achieve collective legitimacy).
180. See supra notes 108-09 and accompanying text.
181. See, e.g., GUTMANN & THOMPSON, supra note 7, at 27;
182. Cohen, supra note 92, at 187.
183. See Roberto Gargarella, Full Representation, Deliberation, and Impartiality, in DELIBERATIVE DEMOCRACY, supra note 92, at 260, 263-64 (describing "Burke's model" of deliberative democracy and explaining that there is "plain textual evidence ⋯ of the confidence he had in deliberation as a means for achieving 'correct' political decisions").
184. See GUTMANN & THOMPSON, supra note 7, at 1 (explaining that the core idea of deliberative democracy is that "when citizens and their representatives disagree morally, they should continue to reason together to reach mutually acceptable decisions");
185. Cohen, supra note 92, at 187-93 (describing his assumption of "the fact of reasonable pluralism: the fact that there are distinct, incompatible philosophies of life to which reasonable people are drawn under favorable conditions for the exercise of practical reason");
186. Rawls, supra note 92, at 766-66 ("[A] basic feature of democracy is the fact of reasonable pluralism - the fact that a plurality of conflicting reasonable comprehensive doctrines, religious, philosophical, and moral, is the normal result of its culture of free institutions.").
187. See Fearon, supra note 97, at 44-68 (cataloguing potential benefits of reasoned deliberation);
188. supra notes 119-22 and accompanying text.
189. See supra notes 92-97 and accompanying text.
190. See, e.g., Fearon, supra note 97, at 47 ("The principal dilemma for discussion as a means of revealing private information relevant to a political choice is that people can have strategic incentives to misrepresent their preferences or special knowledge.").
191. The notion of deliberative accountability that is set forth here differs in this respect from some prominent theories of deliberative democracy.
192. See John M. Kang, The Irrelevance of Sincerity: Deliberative Democracy in the Supreme Court, 48 ST. LOUIS U. L.J. 305, 306 (2004) (identifying several prominent theorists of deliberative democracy who have advocated sincerity in public discourse). For a similar perspective to my own, see Elster, supra note 92, at 100-05 ("[A] deliberative setting can shape outcomes independently of the motives of the participants." (emphasis omitted)).
193. See supra Part II (describing the weaknesses of political accountabili-ty).
194. See GUTMANN & THOMPSON, supra note 7, at 73-91 (discussing legitimate ways of dealing with "deliberative disagreement").
195. See Id. at 171 ("Utilitarians rightly remind us that attacks on motive and character distract citizens from the substance of issues.").
196. The use of "strict scrutiny" in constitutional law has been justified partly on the same underlying basis. See, e.g., Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 802 (2006).
197. See, e.g., Gargarella, supra note 123, at 269-74 (identifying the difficulties associated with achieving "full representation" in contemporary societies, and concluding that proposals for improving "the impartiality of the decision-making process just by improving its deliberative character" are implausible "if most people are kept at the margins of political deliberation").
198. See Eule, supra note 41, at 1514-15 ("Citizens of higher social and economic status are far more heavily represented among [American] voters than among those who abstain, a class skew virtually unparalleled in any other political system conducting free elections.");
199. Somin, supra note 4, at 1354-64 (describing "large intergroup differences in political knowledge ⋯ in the United States today").
200. For a classic defense of judicial review that is based on the need to reinforce the representation of these interests, see ELY, supra note 22.
201. This is one of the central lessons of public choice theory.
202. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1971).
203. See, e.g., GUTMANN & THOMPSON, supra note 7, at 132-34 ("To the extent that the political struggle takes place on the basis of deliberation rather than of power, it is more evenly matched.");
204. see also Cohen, supra note 103, at 21-22 (claiming that political power can be justified "if and only if [a decision] could be the object of a free and reasoned agreement among equals");
205. Christopher H. Schroeder, Deliberative Democracy's Attempt to Turn Politics into Law, 65 LAW & CONTEMP. PROBS. 95, 100-01 (2002) (explaining that under deliberative democratic theory, "[u]ses of political power should be choice-sensitive and status insensitive").
206. See Mathew D. McCubbins & Daniel B. Rodriguez, When Does Deliberating Improve Decisionmaking?, 15 J. CONTEMP. LEGAL ISSUES 9, 35-39 (2006) (advocating "expertise systems" as "an effective way to improve social welfare" and claiming that even though such systems "are not consistent with many views of deliberation, where equality among participants is a key feature ⋯ many scholars who advocate deliberation actually recommend some form of an expertise system").
207. See Fearon, supra note 97, at 45-46 (explaining that discussion "allows people to express diverse intensities of preferences" and that the "relatively nuanced revelation of private information" that is facilitated by deliberation may influence voting decisions).
208. See GUTMANN & THOMPSON, supra note 7, at 141-42 (describing the circumstances in which "the deliberative principle of accountability justifies or allows deference to popular opinion");
209. Cohen, supra note 92, at 197 ("[W]hen people do appeal to considerations that are quite generally recognized as having considerable weight, then the fact that a proposal has majority support will itself commonly count as a reason for endorsing it.").
210. See GUTMANN & THOMPSON, supra note 7, at 132-33 ("Disadvantaged groups have usually found representatives from within their own ranks who could speak for them, and who could articulate their interests and ideals, at least as reasonably and effectively as representatives of established groups.").
211. See Rubin, supra note 1, at 2073 (defining accountability as "the ability of one actor to demand an explanation or justification of another actor for its actions and to reward or punish that second actor on the basis of its performance or its explanation");
212. supra notes 64-67 and accompanying text (describing this aspect of the political accountability paradigm).
213. See supra note 64 and accompanying text.
214. See supra notes 14-15 and accompanying text.
215. Cf. Rawls, supra note 92, at 769 ("When firm and widespread, the disposition of citizens to view themselves as ideal legislators, and to repudiate government officials and candidates for public office who violate public reason, is one of the political and social roots of democracy, and is vital to its enduring strength and vigor."). For a recent reminder that we do not live in this ideal world, see DREW WESTEN, THE POLITICAL BRAIN (2007) (describing the dominant role of emotion in processing political information).
216. See infra Part IV;
217. see also GUTMANN & THOMPSON, supra note 7, at 146 ("To defend deliberative accountability, we do not have to deny that representatives should attend to the claims of those who elect them.").
218. See U.S. CONST, art. III, § 1 (providing that federal judges "shall hold their Offices during good Behaviour");
219. United States v. Perkins, 116 U.S. 483, 484 (1886) (recognizing the power of removal that is incident to the President's power of appointment under the Constitution).
220. See Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 ADMIN. L. REV. 753, 761-63 (2006) ("Defenders of hard look review, including the courts that employ it, argue that it ensures the supposedly expert agency really has based its decision on a reasoned analysis of relevant information."). As Stephenson explains, critics of hard-look judicial review vigorously dispute its purported benefits and whether they are worth the costs. See Id. at 763-65. For a discussion of similar issues that are raised about the purported benefits of written judicial opinions, see Chad M. Oldfa-ther, Writing, Cognition, and the Nature of the Judicial Function, 96 GEO. L.J. 1283 (2008).
221. See supra text accompanying note 100.
222. For example, federal administrative decisions will be invalidated as arbitrary or capricious under the APA if an agency: has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Auto Ins. Co., 463 U.S. 29. 43 (1983).
223. See infra note 188 and accompanying text. Because the judiciary has neither the power of the purse nor the sword, political officials can also conceivably refuse to enforce or follow their decisions. See Friedman, Dialogue, supra note 21, at 643-48 (challenging the assumption that a judicial decision constitutes the last word on an issue).
224. See supra notes 14-15 and accompanying text.
225. For a discussion of the use of these techniques in statutory interpretation, see Schacter, supra note 30, at 593 (identifying a new conception of democratic legitimacy in statutory interpretation whereby the court assigns meaning to a contested statutory term by using interpretive rules that are designed to produce "democratizing effects" that correspond to a particular image of democracy).
226. See Somin, supra note 4, at 1325 (arguing that there is a small payoff to an individual for acquiring political knowledge, and as a result, political ignorance is unlikely to change in the foreseeable future).
227. See, e.g., Eule, supra note 41, at 1522-31 (providing an influential discussion of the republican safeguards against majority faction that are provided by the Constitution);
228. Sunstein, Interest Groups, supra note 95, at 31-49 (same).
229. See Manning, supra note 34, at 74-78.
230. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
231. See supra note 155 and accompanying text.
232. See Rebecca L. Brown, Liberty, the New Equality, 77 N.Y.U. L. REV. 1491, 1494 (2002) ("[C]laims of liberty are often understood as assertions of 'trumps' against majority decisions and thus in tension with democratic rule.").
233. See infra notes 165-170 and accompanying text.
234. See, e.g., GUTMANN & THOMPSON, supra note 7, at 357 (acknowledging that deliberative democracy's "highest ideals make demands that actual politics may never fulfill").
235. See id. ("The gap between the theory and practice of deliberative democracy is narrower than in most other conceptions of democracy.").
236. See supra note 154 and accompanying text;
237. supra Part I.
238. See infra notes 165-70 and accompanying text;
239. infra Part IV.B.
240. See, e.g., John Rawls, The Idea of Public Reason, in DELIBERATIVE DEMOCRACY 93, 108-14 (James Bohman & William Rehg eds., 1997) (characterizing the Supreme Court as the "exemplar" of the type of "public reason" that should govern the public arena);
241. see also Oldfather, supra note 148, at 1285 (recognizing "longstanding conceptions of the judicial role, in which reasoned analysis stands as the core feature of legitimate judging");
242. Louis Michael Seidman, Ambivalence and Accountability, 61 S. CAL. L. REV. 1571, 1574 (1988) (recognizing that appellate judges are usually accountable in the sense that they give reasons or justifications for their decisions).
243. See Staszewski, supra note 38, at 443-46 ("The net result of APA procedures and 'hard-look' judicial review under State Farm is to encourage and enforce republican ideals of deliberation and reasoned decisionmaking in the administrative lawmaking process.");
244. Sunstein, Interest Groups, supra note 95, at 56-58 (describing administrative law doctrine as "classically republican" because of its requirements of "deliberation" and "reasoned analysis").
245. See, e.g., Harris v. McRae, 448 U.S. 297, 322 (1980) (recognizing the "presumption of constitutional validity" that is ordinarily attributed to acts of Congress);
246. Phillip P. Frickey, The Communion of Strangers: Representative Government, Direct Democracy, and the Privatization of the Public Sphere. 34 WILLAMETTE L. REV. 421, 444 (1998) ("Federal constitutional law conclusively presumes that, when general legislation affects many people, the legislative process" meets the criteria of due process of lawmaking because it "develop[s] the relevant facts and legal standards so that people are not deprived of important rights or interests based on erroneous assumptions" and promotes "participation and dialogue by affected individuals in the decisionmaking process").
247. See Staszewski, supra note 91, at 1018-22 (describing the reasoned deliberation that is facilitated in the legislative process by the constitutional safeguards of representation and bicameralism and presentment).
248. The Constitution, however, requires the President to report periodically on "the state of the union" and to provide the reasons for his objections to a bill that was presented to him by Congress if he returns the proposal to the legislature without his signature. U.S. CONST, art. I, § 7, cl. 2;
249. art. II, § 3.
250. See, e.g., Michael A. Fitts, The Paradox of Power in the Modern State: Why a Unitary, Centralized Presidency May Not Exhibit Effective or Legitimate Leadership, 144 U. PA. L. REV. 827, 843-45 (1996) (describing the "rhetorical functions" performed by the modern presidency through its "public media role").
251. See Staszewski, supra note 38, at 398 (recognizing that direct democracy allows unelected citizens to make laws without structural safeguards that "are designed to encourage careful deliberation and reasoned decisionmaking in the legislative process");
252. Staszewski, supra note 88, at 32-39 (claiming that the initiative process facilitates deceptive behavior by initiative proponents and increases the risk that successful ballot measures will have collateral consequences not intended by the voters).
253. See supra note 168 and accompanying text.
254. See Eule, supra note 41, at 1532 (recognizing that a successfully enacted statute necessarily "passed through an extensive filtering system," characterizing the results of this process as "majoritarianism plus," and claiming that "[i]t is the plus that reflects the Framers' unique vision of democracy, and it is the plus that warrants judicial caution in substituting its own judgment");
255. supra notes 167-68 and accompanying text.
256. See supra note 173;
257. see also INS v. Chadha, 462 U.S. 919, 951, 959 (1983) (holding that the legislative veto violates the constitutional requirements of bicameralism and presentment, and explaining that the Framers decided that "the legislative power of the Federal government [could only] be exercised in accord with a single, finely wrought and exhaustively considered, procedure").
258. See, e.g., Eule, supra note 41, at 1556 ("Legislative logrolling over a broad agenda brings minorities into the process and allows resulting compromises to accommodate their interests.");
259. Marci A. Hamilton, Representation and Nondelegation: Back to Basics, 20 CARDOZO L. REV. 807, 814 (1999) (explaining that "[b]ecause of its numbers, Congress is capable of mediating a great variety of interests" and "[a]s a result, it is capable of reaching more nuanced compromises on national issues. ⋯ to reach the public good").
260. See Eule, supra note 41, at 1532 (recognizing that "[t]he 'difficulty' with judicial review entails its reconciliation with the constitutional version of democracy, not with some abstract form that exalts unfiltered majoritarian-ism" and claiming that the countermajoritarian difficulty "would be more accurately conceptualized as a 'counter-representative' or 'counter-republican' difficulty");
261. see also Sunstein, Republican Revival, supra note 95, at 1550 ("The requirement of deliberation is designed to ensure that political outcomes will be supported by reference to a consensus (or at least broad agreement) among political equals.").
262. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
263. See Robert A. Anthony & David A. Codevilla, Pro-Ossification: A Harder Look at Agency Policy Statements, 31 WAKE FOREST L. REV. 667, 677 (1996) ("[T]he deference that courts extend to legislative rules reflects an assumption that, because due opportunities for comment and deliberation have occurred, the product is worthy of judicial respect.");
264. supra note 166 and accompanying text.
265. See, e.g., Lawrence Gene Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc., 91 HARV. L. REV. 1373, 1411-12 (1978) (recognizing that judicial deference is often justified on the grounds "that the governmental body which has enacted a regulatory measure is best equipped to make judgments of policy and strategy, and further, that the body in question can and will measure its own conduct against constitutional requirements" and claiming that "judicial departures from the tradition of deference are often justified by circumstances which impair or render suspect this process of legislative deliberation").
266. The articulation and defense of specific reform proposals of this nature are beyond the scope of this Article. Heightened standards of judicial review for "due process of lawmaking" are one potential option, but it would certainly be preferable to find "political solutions" for these accountability deficits if at all possible. Cf. Brown, supra note 106, at 37 (recognizing that the "frightening specter" of imposing "substantive obligations [on] legislatures" has never "gained much purchase in American constitutional law" and that this is unlikely to change);
267. Frickey & Smith, supra note 50, at 1707-09 (claiming that an accurate understanding of congressional decision-making processes suggests that Congress cannot satisfy a judicially imposed requirement of due deliberation and rational, articulated decision-making).
268. For a theory that treats constitutional principles of liberty, equality, and citizenship as central to democracy, see Jane S. Schacter, Romer v. Evans and Democracy's Domain, 50 VAND. L. REV. 361, 399 (1997).
269. See, e.g., Chemerinsky, supra note 16, at 102 (claiming that "society should have an institution ⋯ that is not popularly elected or directly electo-rally accountable identify and protect values that are sufficiently important to be constitutionalized and safeguarded from political majorities" and that "Justices should openly explain and defend their value choices, and thus persuade observers of the best way to understand and apply the Constitution").
270. For a compelling argument that the conventional mechanisms for maintaining the separation of powers in American government are incoherent and unhelpful, see M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603 (2001).
271. John Braithwaite, Accountability and Responsibility Through Restorative Justice, in PUBLIC ACCOUNTABILITY, supra note 11, at 33, 39-40 (comparing the republican vision of separated powers with a more hierarchical vision).
272. See Staszewski, supra note 91, at 1026 (setting forth an understanding of the legislative process whereby "statutes should have an instrumental purpose that promotes the common good").
273. For interesting discussions of the role of administrative procedures in enabling legislative oversight and public-interested regulation, see Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 COLUM. L. REV. 1749 (2007), and Steven P. Croley, Public Interested Regulation, 28 FLA. ST. U. L. REV. 7 (2000).
274. See Abbot Labs. v. Gardner, 387 U.S. 136, 149 (1967) (establishing a presumption in favor of judicial review of final agency action).
275. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991) (conducting an empirical study and analysis of the extent to which Congress overrules statutory decisions of the Supreme Court).
276. See supra notes 165-68 and accompanying text.
277. See, e.g., Morrison v. Olson, 487 U.S. 654, 697-98, 704-12 (1988) (Sca-lia, J., dissenting);
278. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 896-97 (1983) (arguing that the judiciary should not interfere with the operation of the political branches except to protect vested individual rights).
279. See, e.g., Calabresi, supra note 25, at 50-57 (claiming that congressional oversight and judicial review threaten the President's ability to faithfully execute the laws).
280. See Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (adopting the hard-look standard of judicial review);
281. see also Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 TEX. L. REV. 483, 484-90 (1997) (claiming that the undesirable effects of hard-look judicial review are likely outweighed by its considerable benefits, which include "the need to ensure that agencies act not only within acceptable legal and political bounds, but also exercise their discretion in a deliberative manner").
282. See Ronald M. Levin, The Anatomy of Chevron; Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253, 1254-55, 1263-77 (1997) (endorsing this approach and finding evidence of its use by the D.C. Circuit);
283. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 83 (1994) ("[D]eliberative democracy suggests a modification of Chevron which would place the emphasis on the second rather than the first Chevron step, thereby forcing agencies to explain why their interpretations are good policy in light of the purposes and concerns underlying the statutory scheme.").
284. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (holding that an agency interpretation "qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority");
285. Id. at 227 (explaining that the foregoing standard will generally be met when an agency interpretation is rendered pursuant to formal adjudication or notice-and-comment rulemaking);
286. see also Christensen v. Harris County, 529 U.S. 576, 587 (2000) (denying Chevron deference to an agency interpretation rendered in an opinion letter).
287. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) (holding that a prior judicial construction only trumps an agency's interpretation under Chevron if the court held that its construction was mandated by the unambiguous terms of the statute and explaining that a contrary rule would unnecessarily "preclud[e] agencies from revising unwise judicial constructions of ambiguous statutes").
288. The "Skidmore factors," which are perhaps taking on increased practical significance, provide a nice laundry-list of what it takes to achieve deliberative accountability: (1) thorough consideration; (2) participatory and deliberative procedures; (3) the application of expertise; (4) valid reasoning; and (5) consistent treatment of regulated parties (with reasoned explanations for any changes in the regulatory course). Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). For an informative description of the judiciary's application of these factors, see Kristin E. Hickman & Matthew D. Krueger, In Search of the "Modern" Skidmore Standard, 108 COLUM. L. REV. 1235 (2007).
289. But cf. Kagan, supra note 25, at 2251, 2326-31 ("[A] statutory delegation to an executive agency official ⋯ usually should be read as allowing the President to assert directive authority ⋯ over the exercise of the delegated discretion.").
290. It bears noting, however, that the current status of hard-look judicial review and its relationship to the second step of the Chevron analysis is not entirely clear.
291. See Michael Herz, The Rehnquist Court and Administrative Law, 99 NW. U. L. REV. 297, 308-25 (2004). The degree of respect that should be accorded to agency interpretations under Skidmore is also still in a great deal of flux.
292. See Hickman & Krueger, supra note 196, at 1237.
293. See Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 402-03 (2007) (claiming that the case for procedural reform of informal agency policymaking is significantly bolstered by a recognition of the need for adequate consideration of the interests and perspectives of regulatory beneficiaries).
294. For a prominent example of a decision that restricts the standing of regulatory beneficiaries to seek judicial review, see Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). For critical commentary, see Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. REV. 1657, 1692 (2004) (claiming that the Court's standing doctrine facilitates faction by giving regulated entities more power to challenge agency action than regulatory beneficiaries and thereby making it "more likely that agencies will respond to private or political pressure rather than public welfare");
295. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 186-88, 195-96 (1992) (criticizing the Court for disfavoring regulatory beneficiaries in this context).
296. See Bressman, supra note 200, at 1692 (explaining that the nonrevie-wability doctrine has the same negative impact as limitations on the standing of regulatory beneficiaries);
297. supra note 44.
298. Compare Sierra Club v. Costle, 657 F.2d 298, 400-02 (D.C. Cir. 1981) (holding that ex parte contacts between an agency and interested parties did not violate the governing statute or the informal rulemaking procedures of the APA), with Home Box Office, Inc. v. FCC, 567 F.2d 9, 51-59 (D.C. Cir. 1976) (invalidating regulations promulgated by an agency on the basis of undisclosed ex parte contacts).
299. See, e.g., William D. Araiza, Judicial and Legislative Checks on Ex Parte OMB Influence Over Rulemaking, 54 ADMIN. L. REV. 611, 615 (2002) (suggesting that external checks would be useful "to guard against potentially inappropriate ⋯ influence over the
300. Sidney A. Shapiro, Two Cheers for HBO: The Problem of the Nonpublic Record, 54 ADMIN. L. REV. 853, 855 (2002) (arguing that "agencies and the White House should reveal private communications of central relevance" to rulemaking proceedings).
301. See William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 101 COLUM. L. REV. 990, 1090-91 (2001).
302. See Molot, supra note 36, at 31 (explaining that central tenets of tex-ualism have resonated with mainstream judges and scholars "who generally accept that courts should be faithful to legislative instructions and follow laws enacted through bicameralism and presentment rather than make new laws themselves").
303. See Eskridge, supra note 204, at 1090-92 (claiming that the unwillingness to consider other contextual evidence when a judge discerns a plain statutory meaning from textual sources is an innovation of strict texualism "that represents a significant departure from the Court's practice in the twentieth century, and is [in] consistent with the original understandings of Article III");
304. Manning, supra note 34, at 20-27 (explaining that the contrast between strong purposivism and textualism only comes into play when the statutory text is unambiguous);
305. Staszewski, supra note 91, at 1025-27 (explaining that "theoretical differences between the new textualism and civic republican understandings of the legislative process and constitutional structure lead to competing conceptions of the judicial role" when "legislative generality produces a problematic outcome that was unforeseen by the legislature").
306. See Molot, supra note 36, at 36-39, 44-48 (analyzing the unresolved areas of disagreement between "aggressive textualists" and the adherents of other theories of statutory interpretation).
307. See Manning, supra note 33, at 2463 (claiming that statutory ambiguity only exists when "a given phrase has several relevant social connotations");
308. see generally John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70 (2006) (distinguishing textualism from purposivism on the grounds that textualists emphasize semantic context over policy context and vice versa).
309. See Manning, supra note 208, at 84-85 ("[W]hen a statute is ambiguous, textualists think it quite appropriate to resolve that ambiguity in light of the statute's apparent overall purpose.").
310. See Manning, supra note 33, at 2462-63 ("For textualists, the prerequisite for employing a contextual interpretation to avoid absurdity is the existence of a relevant and established social nuance to the usage of the word or phrase in context." (emphasis omitted));
311. see also Manning, supra note 34, at 115-19 (discussing Justice Scalia's efforts to limit the absurdity doctrine to circumstances "in which the more natural textual meaning would pose serious constitutional questions under the rational-basis test").
312. See supra notes 33-35 and accompanying text.
313. See id.
314. See supra notes 36-37 and accompanying text.
315. See supra text accompanying notes 154-55.
316. See WILLIAM N. ESKRIDGE, JR., ET AL., LEGISLATION AND STATUTORY INTERPRETATION 243-44 (2d ed. 2006) (explaining that textualism poses a risk of "creating a law without mind" (internal quotations omitted)).
317. See Molot, supra note 36, at 54 ("Where judges refuse to consider statutory purposes, they make it that much harder for the people's elected representatives to accomplish their goals.").
318. The legislature's subsequent opportunity to amend a statute to overrule the judiciary's decision could result in valuable political deliberation about the policy question at issue, but it would not ordinarily eliminate the arbitrary judicial decision that was previously rendered. It therefore seems preferable for the judiciary to render a reasoned decision in the first instance, which still allows Congress to amend the statute to reach a different outcome if it so chooses. Cf. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112-16 (1991) (Stevens, J., dissenting) (recognizing that Congress has the power to correct the judiciary's "mistakes" in statutory interpretation, but claiming that "we do the country a disservice when we needlessly ignore persuasive evidence of Congress's actual purpose and require it 'to take the time to revisit the matter' and to restate its purpose in more precise English whenever its work product suffers from an omission or inadvertent error" (citation omitted)).
319. See Staszewski, supra note 91, at 1045 (distinguishing between "known imprecision" and unanticipated problems that periodically arise in statutory interpretation).
320. See Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 COLUM. L. REV. 242, 250-52 (1998) (recognizing that the new textualism's refusal to consult legislative history is in tension with a constitutional structure that is designed to facilitate reasoned deliberation).
321. Cf. Staszewski, supra note 91, at 1047-55 (describing the general parameters of the absurdity doctrine in statutory interpretation).
322. See Eskridge, supra note 204, at 991 ("Academic debates about statutory interpretation methodology have increasingly involved competing 'faithful agent' versus 'cooperative partner' understandings of the role of federal judges.").
323. See Eule, supra note 41, at 1503, 1549-55;
324. Staszewski, supra note 38, at 398;
325. supra Part IV.A (explaining the moderating role of structural safeguards on deliberative accountability).
326. See Staszewski, supra note 88, at 39-59.
327. See Frickey, supra note 87, at 517, 522 (advocating the establishment of a strong preference for continuity in the ballot initiative context based on republican principles of government, whereby "pre-existing law is displaced by the ballot proposition only when the clear text or evident, core purposes of the electorate so requires");
328. Schacter, supra note 39, at 156-61 (advocating the narrow interpretation of ambiguous language when it seems especially likely that a ballot measure was tainted by the manipulation of "highly organized, concentrated, and well-funded interests");
329. Staszewski, supra note 88, at 45-55 (endorsing the foregoing proposals and claiming that courts should also "narrowly construe ambiguous ballot measures in accordance with the campaign statements of their proponents").
330. See Staszewski, supra note 38, at 447-59 (proposing the application of an "agency model" to direct democracy and explaining what this reform would entail).
331. See Staszewski, supra note 88, at 69-70.
332. Cf. Staszewski, supra note 38, at 459 (suggesting that such reforms would "encourage meaningful deliberation and reasoned decisionmaking" as well as "hold initiative proponents accountable for their actions during the lawmaking process"). The substantive canons of statutory interpretation that are endorsed above would also promote deliberative accountability by helping to clarify the specific legal consequences of proposed ballot measures (thereby potentially enabling reasoned deliberation about their merits) and leaving the resolution of collateral policy issues to more deliberative lawmaking processes.
333. See Frickey, supra note 87, at 517-27;
334. Staszewski, supra note 88, at 72.
335. See supra note 39 and accompanying text.
336. See, e.g., GUTMANN & THOMPSON, supra note 7, at 230-345 (articulating deliberative conceptions of liberty, welfare, and fair opportunity);
337. Cohen, supra note 92, at 185, 201-21 (setting forth deliberative conceptions of religious, expressive, and moral liberty).
338. See supra Part II.
339. Even this concession may give too much credit to standard notions of political accountability. In this regard, survey evidence of the salience of the issue of same-sex marriage to voters is mixed.
340. See Tonja Jacobi, How Massachusetts Got Gay Marriage: The Intersection of Popular Opinion, Legislative Action, and Judicial Power, 15 J. CONTEMP. LEGAL ISSUES 219, 220-21, 223 & n.21 (2006) (explaining that there was no political backlash against politicians who supported the recognition of same-sex marriage in Massachusetts and concluding from an evaluation of survey evidence from Gallup and Pew that "[t]he salience of the same-sex marriage issue is subject to dispute, both in relation to the election, as discussed, and more generally").
341. See, e.g., Standhardt v. Superior Court, 77 P. 3d 451, 465 (Ariz. Ct. App. 2003) ("[I]t is for the people of Arizona, through their elected representatives or by using the initiative process, rather than this court, to decide whether to permit same-sex marriages.");
342. Maggie Gallagher, Aloha Chorus for Gay Marriage Debate, WASH. TIMES, Apr. 22, 1997, at A15 ("Hawaii's graceful, commonsense solution [of amending the state constitution to allow the legislature to reserve marriage to opposite-sex couples] represents both a rebuke to power-hungry judges and an object lesson in how much better off we are when difficult political issues are left to the political process.");
343. see also Thad Kouss-er & Mathew D. McCubbins, Social Choice, Crypto-Initiatives, and Policymaking By Direct Democracy, 78 S. CAL. L. REV. 949, 971 (2005) ("In the November 2004 election, eleven states (Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah) considered defense of marriage initiatives, and they all passed.").
344. See Jacobi, supra note 231, at 222 (pointing out that twelve of the thirteen states that recently enacted constitutional amendments to prohibit same-sex marriage "already had both laws banning same-sex marriage and state Defense of Marriage Acts, which prevented recognition of out of state same-sex marriages").
345. See Press Release, George W. Bush, President of the U. S., President Calls for Constitutional Amendment Protecting Marriage (Feb. 24, 2004), available at http://www.politicalvideo.org/george-bush-calls- constitutional-amendment-protecting-marriage.
346. See U.S. CONST, art. V. The Federal Marriage Amendment died in the Senate when it failed to receive the two-thirds majority required in each chamber of Congress to propose a constitutional amendment.
347. See WILLIAM N. ESKRIDGE, JR. & DARKEN R. SPEDALE, GAY MARRIAGE 39-41 (2006) (describing the proceedings).
348. Cf. Romer v. Evans, 517 U.S. 620, 651-52 (1996) (Scalia, J., dissenting) (criticizing the majority's decision to invalidate a state constitutional amendment that would prevent Colorado from taking any action to protect gays and lesbians and claiming that "courts (as opposed to the political branches)" have "no business" taking sides in a "culture war").
349. See, e.g., Att'y Gen. of New York. v. Soto-Lopez, 476 U.S. 898, 906 n.6 (1986) (describing the conventional reasons for heightened judicial scrutiny).
350. See supra Part I.
351. See ESKRIDGE & SPEDALE, supra note 235, at 20-31 (describing the evolving opposition to same-sex marriage in the United States).
352. See Id. at 21-22. For an example of a judicial decision that upheld the validity of a legal prohibition of same-sex marriage solely on these grounds, see Jones v. Hallahan, 501 S.W.2d 588, 589-90 (Ky. 1973).
353. See ESKRIDGE & SPEDALE, supra note 235, at 23-24. For a leading federal decision that relies upon traditional definitions and religious authority to justify a refusal to recognize same-sex marriage, see Adams v. Howerton, 486 F. Supp. 1119, 1123 (CD. Cal. 1980), aff'd on other grounds, 673 F.2d 1036 (9th Cir. 1982).
354. See ESKRIDGE & SPEDALE, supra note 235, at 25-30.
355. See Id. at 24 (describing the "slippery slope" argument and observing that it has "become almost boilerplate in speeches or books that oppose same-sex marriage").
356. For influential renditions of the "defense of marriage" argument against same-sex marriage, see G. Sidney Buchanan, Same-Sex Marriage: The Linchpin Issue, 10 U. DAYTON L. REV. 541, 565-72 (1985);
357. Teresa Stanton Col-lett, Should Marriage Be Privileged?: The State's Interest in Childbearing Unions, in MARRIAGE AND SAME-SEX UNIONS 152, 152-61 (Lynn D. Wardle et al. eds., 2003);
358. Maggie Gallagher, Normal Marriage: Two Views, in MARRIAGE AND SAME-SEX UNIONS, supra, at 13, 13-24;
359. see also ESKRIDGE & SPEDALE, supra note 235, at 28-31 (describing the objection and explaining its contemporary popularity).
360. See ESKRIDGE & SPEDALE, supra note 235, at 36, 169-72.
361. Cf. Brett H. McDonnell, Is Incest Next?, 10 CARDOZO WOMEN'S L.J. 337, 337 & n.2 (2004) (evaluating how Lawrence v. Texas affects laws regulating other forms of sexual behavior, including consensual adult incest, but expressly excluding "behavior that is not consensual or where one or more of the persons involved is not adult" from this inquiry);
362. see also ESKRIDGE & SPEDALE, supra note 235, at 24 (distinguishing prohibitions on same-sex marriage from age of consent laws on the grounds that "[m]inors are not mature enough to consent").
363. See Shayna M. Sigman, Everything Lawyers Know About Polygamy Is Wrong, 16 CORNELL J.L. & PUB. POL'Y 101, 169 (2006) ("[I]nternational law has deemed polygamy an offense against equality.");
364. see also ESKRIDGE & SPEDALE, supra note 235, at 24 (distinguishing legal prohibitions on same-sex marriage from prohibitions of polygamy on the grounds that "polygamy is a terrible legal regime from women's point of view").
365. ESKRIDGE & SPEDALE, supra note 235, at 29.
366. See supra note 244 and accompanying text.
367. See, e.g., H.R. REP. No. 104-664, at 15 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2919-21 [hereinafter HOUSE REPORT].
368. See, e.g., Id. at 2913, reprinted in 1996 U.S.C.C.A.N. 2905, 2917 ("At bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child-rearing. ");
369. Gallagher, supra note 244, at 19 (claiming that "same-sex marriage puts at risk" the basic ideal that "marriage is about ⋯ the reproduction of children and society" and "the presumption that children need mothers and fathers, and that marriage is the way in which we do our best to get them for children");
370. see also ESKRIDGE & SPEDALE, supra note 235, at 30 (pointing out that the defense of marriage argument draws some of its broad appeal from the underlying notion that "[t]he most vulnerable minority is the children, and if there is the slightest risk that homosexual marriage would hurt the children, that should suffice").
371. See Baker v. State, 744 A.2d 864, 881-82 (Vt. 1999) (canvassing data on the increasing number of children who are being raised by same-sex parents through assisted-reproductive techniques and adoption).
372. See id. (concluding that the state's asserted interest in "furthering the link between procreation and child rearing" was insufficient to justify denial of the legal benefits of marriage to same-sex couples because this statutory exclusion was significantly over- and under-inclusive);
373. HOUSE REPORT, supra note 250, at 2914, reprinted in U.S.C.C.A.N. 2905, 2918 ("[S]ociety has made the eminently sensible judgment to permit heterosexuals to marry, notwithstanding the fact that some couples cannot or simply choose not to have children.").
374. See ESKRIDGE & SPEDALE, supra note 235, at 180-89 (articulating a more fully developed version of this argument).
375. See Stanley Kurtz, The End of Marriage in Scandinavia, WKLY. STANDARD, Feb. 2, 2004;
376. Stanley Kurtz, Slipping Toward Scandinavia, NAT'L REV. ONLINE, Feb. 2, 2004, http://www.nationalreview.com/ kurtz/kurtz200402020917.asp.
377. See ESKRIDGE & SPEDALE, supra note 235, at 169-202.
378. See Id. at 131-67, 173-79.
379. See Carlos A. Ball & Janice Farrell Pea, Warring with Wardle: Morality, Social Science, and Gay and Lesbian Parents, 1998 U. ILL. L. REV. 253, 278 (claiming that the social science literature does not support the view that children raised by gays and lesbians are harmed by the sexual orientation of their parents);
380. Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter?, 66 AM. SOC. REV. 159, 160 (2001) (identifying certain limitations in the existing literature, but reporting that most research in psychology "reports findings of no notable differences between children reared by heterosexual parents and those reared by lesbian and gay parents, and that it finds lesbigay parents to be as competent and effective as heterosexual parents").
381. See generally SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE PARENT (1994) (compiling statistical data that demonstrates that children who grow up with only one parent in the household have a harder time making the transition from adolescence to adulthood);
382. JUDITH WALLERSTEIN ET AL., THE UNEXPECTED LEGACY OF DIVORCE (2000);
383. Sharon K. Houseknecht & Jaya Sastry, Family "Decline" and Child Well-Being: A Comparative Assessment, 58 J. MARRIAGE & FAM. 726 (1996) (comparing varying degrees of family decline in the United States, Sweden, Switzerland, and New Zealand).
384. See, e.g., GUNILLA RINGBÄCK WEITOFT, LONE PARENTING, SOCIOECONOMIC CONDITIONS AND SEVERE ILL-HEALTH (2003) (finding that children raised by two cohabiting or married parents, including parents who live with a partner who is unrelated to the child, are better off along a variety of important measures than children raised by "lone parents"). There is a potential concern, however, that cohabiting parents are more likely to split up, resulting in a lone-parent family. The legal recognition of same-sex marriage would, of course, have a tendency to alleviate this concern, in addition to increasing the number of children who are raised in a household with two parents.
385. See ESKRIDGE & SPEDALE, supra note 235, at 197-99 (explaining that Weitoft's study, which is heavily relied upon by some opponents of same-sex marriage, can be utilized to support its legal recognition).
386. See ESKEIDGE & SPEDALE, supra note 235, at 29.
387. See Loving v. Virginia, 388 U.S. 1, 12 (1967).
388. See, e.g., ESKRIDGE & SPEDALE, supra note 235, at 13.
389. For a recent compilation of those rights and obligations under federal law, see U.S. GEN. ACCOUNTING OFFICE, GAO-04-353R, DEFENSE OF MARRIAGE ACT (2004), available at http://www.gao.gov/new.items/d04353r.pdf. (identifying 1138 federal laws in which marital status is a factor).
390. See ESKRIDGE & SPEDALE, supra note 235, at 220-28 (explaining that "a politics of disgust is one that is driven by ⋯ emotional responses," rather than "rational analyses and argumentation").
391. See Id. at 223-25;
392. see also MARY DOUGLAS, PURITY AND DANGER (1966) (recognizing the role of boundary maintenance that is served by disgust).
393. See William N. Eskridge, Jr., Body PoliticsMM: Lawrence v. Texas and the Constitution of Disgust and Contagion, 57 FLA. L. REV. 1011, 1048 (2005) ("[D]isgust-based regulatory schemes tend to sacrifice the liberties of the minority in pursuit of goals that are often not linked to the common good.").
394. Cf. GUTMANN & THOMPSON, supra note 7, at 84-85 (advocating an "economy of moral disagreement" in which "citizens should seek the rationale that minimizes rejection of the position they oppose" when "justifying policies on moral grounds").
395. See ESKRIDGE & SPEDALE, supra note 235, at 224-25.
396. The proper role of "disgust" or boundary maintenance in the law is the subject of an incipient literature.
397. See Courtney Megan Cahill, Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 NW. U. L. REV. 1543 (2005).
398. See ESKBIDGE & SPEDALE, supra note 235, at 17-18.
399. See AM. ENTER. INST. IN PUB. OPINION, ATTITUDES ABOUT HOMOSEXUALITY & GAY MARRIAGE 27-28 (2004) (reporting survey results that consistently favor civil unions over legal recognition of same-sex marriage).
400. See Peter Hay, Recognition of Same-Sex Legal Relationships in the United States, 54 AM. J. COMP. L. 257, 257 (2006) ("So far, only Massachusetts permits same-sex marriage, Vermont and Connecticut provide for 'civil unions,' some states provide for registered domestic partnerships, and a number of other states extend benefits to domestic partners, without however giving that partnership a particular legal status."). The Supreme Court of California recently held that its state Constitution guarantees the basic civil right of marriage "to all individuals and couples, without regard to their sexual orientation."
401. In re Marriage Cases, 183 P.3d 384, 427 (Cal. 2008) (emphasis added);
402. see also Kerrigan v. Comm'r of Pub. Health, 957 A. 2d 407, 418 (Conn. 2008) (holding that state laws that restricted civil marriage to heterosexual couples violated the equal protection rights of same-sex couples under the state constitution). The California decision was recently overruled by the enactment of Proposition 8 pursuant to the ballot initiative process. See Gay Rights Hit Hard at Polls, NEWSDAY, Nov. 6, 2008, at w17.
403. See supra notes 232-33 and accompanying text;
404. see also Hay, supra note 273, at 276 ("[S]tate law in some forty states, by statute, constitutional provision, or judicial interpretation of existing marriage laws forbids same-sex marriage or civil union and denies recognition to such relationships formalized elsewhere.").
405. For arguments that the validity of ballot initiatives of this nature should be reviewed more stringently than ordinary legislation by the courts in circumstances of this nature, see Eule, supra note 41, at 1558-59;
406. and Hans A. Linde, When Initiative Lawmaking Is Not "Republican Government": The Campaign Against Homosexuality, 72 OR. L. REV. 19, 21 (1993).
407. See ESKRIDGE & SPEDALE, supra note 235, at 238-39 (advocating an incremental approach to the legal recognition of same-sex marriage, but endorsing the approach taken by the Vermont Supreme Court).
408. See Baker v. State, 744 A.2d 864, 886-88 (Vt. 1999).
409. See supra note 272 and accompanying text.
410. Cf. Jacobi, supra note 231, at 239 (claiming that by remanding its decision to invalidate the state's legal prohibition of same-sex marriage to the legislature, the Massachusetts Supreme Court was able to give lawmakers an incentive to provide legal recognition to civil unions and reduce public opposition to same-sex marriage).
411. See John Ferejohn, Instituting Deliberative Democracy, in DESIGNING DEMOCRATIC INSTITUTIONS 75, 94 (Ian Shapiro & Stephen Macedo eds. 2000) ("[Deliberation takes place against a background of common understandings about what will occur following the formation of, or the failure to form, a deliberative consensus.").
412. Hard-look judicial review of agency decisions can be understood in a similar fashion. Cf. Seidenfeld, supra note 95, at 1541-50 (explaining that from a civic republican perspective, judicial review of administrative action "would become a meaningful dialogue between court and agency in which the court stands in for the knowledgeable citizen that the agency must persuade to accept the regulatory policy");
413. supra note 166 and accompanying text.
414. Cf. Friedman, Academic Obsession, supra note 21, at 156-57 (claiming that "the countermajoritarian difficulty that obsesses the legal academy is not some timeless problem grounded in immutable truths" but rather "it represents - as it almost always has - a need to justify present-day political preferences in light of an inherited intellectual tradition").