A CONSTITUTION OF DEMOCRATIC EXPERIMENTALISM

In this Article, Professors Dorf and Sabel identify a new form of gove rnment, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their Knowle dge with others facing similar problems. This information pooling info rmed by the example of novel Kinds of coordination within and among pr ivate firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its account ability through participation Of citizens in the decisions that affect them. In democratic experimentalism, subnational units of government are broadly free to set goals and to choose the means to attain them. Regulatory agencies set and ensure compliance with national objectives by means of best-practice performance standards based on information that regulated entities provide in return for the freedom to experimen t with solutions they prefer. The authors argue that this type of self -government is currently emerging in settings as diverse as the regula tion of nuclear power plants, community policing, procurement of sophi sticated military hardware, environmental regulation, and child-protec tive services. The Article claims further that a shift towards democra tic experimentalism holds out the promise of reducing the distance bet ween, on the one hand, the Madisonian ideal of a limited government as sured by a complex division of powers and, on the other hand, the gove rnmental reality characteristic of the New Deal synthesis, in, which a n all-powerful Congress delegates much of its authority to expert agen cies that are checked by the courts when they infringe individual righ ts, but are otherwise assumed to act in the public interest. Professor s Dorf and Sabel argue that the combination of decentralization and mu tual monitoring intrinsic to democratic experimentalism better protect s the constitutional ideal than do doctrines of federalism and the sep aration of powers, so at odds with current circumstances, that courts recognize the futility of applying them consistently in practice by li miting themselves to fitful declarations of their validity in principl e. For example, conventional administrative law imposes external judic ial checks on administrative agencies, obliging judges to choose betwe en superficial scrutiny of formal proprieties and disruptive, indeed o ften paralyzing, inquiry into what an idealized agency might be expect ed to do. By contrast, democratic experimentalism requires the social actors, separately and in exchange with each other, to take constituti onal considerations into account in their decisionmaking. The administ rative agency assists the actors even while monitoring their performan ce by scrutinizing the reactions of each to relevant proposals by the others. The courts then determine whether the agency has met its oblig ations to foster and generalize the results of this information poolin g. Agencies and courts alike use the rich record of the parties' inten tions, as interpreted by their acts contained in the continuing, compa rative evaluation of experimentation itself In the administrative and related settings, the aim of democratic experimentalism is to democrat ize public decisionmaking from within, and so lessen the burdens on a judiciary that today awkwardly superintends the every-day workings of democracy from an external vantage point. Finally, the Article reconce ptualizes constitutional rights. Relying in this and other regards on ideas associated with early-twentieth-century American pragmatism, the Article treats disagreements over rights as principally about how to implement widely shared general principles. Under the heading of ''pro phylactic rules'' and related doctrines, the United States Supreme Cou rt has recognized that there are often a variety of acceptable remedie s for a violation of rights or a variety of acceptable means of achiev ing a constitutionally mandated end. The authors argue for a radical e xtension of these doctrines, in which judicial recognition of a genera l, core right, permits substantial experimentation about how to implem ent that right. They propose institutional mechanisms to facilitate su ch experimentation. The authors contend, however, that with rights, as with other constitutionally entrenched principles, means and ends can not be neatly separated, so that experimentation at the periphery also redefines the core, ultimately challenging the very distinction betwe en core and periphery.