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The Agenda

NRO’s domestic-policy blog, by Reihan Salam.

Leon Neyfakh on Heather Gerken and the Democratic Churn



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Leon Neyfakh of the Boston Globe has written an excellent profile of Heather Gerken of Yale Law School, a left-leaning election law scholar who has emerged as a champion of decentralization:

Armed with vivid turns of phrase and a rapid-fire delivery, Gerken has advanced a vision of governance unusual for someone whose political convictions are firmly liberal. Unlike other progressives, who instinctively dig in against conservative ideas of federalism, she wants local decision-making bodies to be given more power, and more opportunity to rebel against federal policy that doesn’t serve their interests. In the book she’s working on now, tentatively titled “The Loyal Opposition,” she puts forth a new way of thinking about how to empower America’s minority groups—not through the conventional tools of “diversity,” but by pushing more power down to a wider array of Americans.

“She’s tapping some veins of thought that have [otherwise] been pretty much ignored,” said Sanford Levinson, a professor at the University of Texas at Austin School of Law. “And she’s putting them together in new and interesting ways.”

Sitting in her office at Yale on a recent afternoon, Gerken described what she likes to call “the democratic churn.” This is the process by which the countless decision-making bodies that make up our country’s government—not just states but city councils, school boards, even zoning commissions—constantly assert themselves, in ways that add up to a serious collective reckoning with policy and values. “I would like people to think about the city of San Francisco as engaging in an act of dissent when it marries same-sex couples,” she said. “And when the religious right passes a rule about teaching intelligent design in school, I want [people] to think about that as an act of dissent [too].” 

Churn, Gerken said, is what happens when those acts of dissent create a real national debate, driving progress by forcing issues out of the realm of the hypothetical and making them real policies. Churn is Gerken’s word for the fitful, often difficult, processes that create social change. “I mean it to be kind of ugly,” she says. “It’s not like it’s neat and easy, but it’s productive.” 

As Neyfakh goes on to recount, Gerken’s project has its origins in a disagreement with Cass Sunstein, the celebrated legal scholar and former head of the Office of Information and Regulatory Affairs (OIRA) who has written about the importance of dissent and disagreement within a decision-making community. Gerken’s chief objection was that dissent isn’t enough. Minority groups need an opportunity to put their dissenting ideas into practice. And so Gerken published a 2005 law review article called “Dissenting by Deciding.” I find Gerken’s ideas very stimulating, and I look forward to reading more of her work. Rather randomly, one of my close friends worked for her a decade ago. 



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