57 Pages Posted: 29 Feb 2012 Last revised: 19 Aug 2012
Date Written: February 29, 2012
American law – in particular, American administrative law – grants citizens extensive rights to participate in government decision-making. Those rights kick in, most importantly, whenever a government entity engages in “rulemaking” as defined in the Administrative Procedure Act. When the federal government engages in rulemaking, it must give members of the public an opportunity to participate in its decision-making by submitting written comments with information or argument. And it must issue a written opinion articulating reasoned responses to any significant points that those public comments raise. The public’s engagement with government in rulemaking, thus, is marked by a two-way dialogic commitment, in which government decision-makers may not simply ignore the arguments raised by citizens. Rather, they must engage with them and respond. I’ll refer to citizens’ entitlement to such consideration as the “right to be taken seriously.”
In this article, after examining the legal basis of the right to be taken seriously, I pose the question why we might value it. The first part of the answer is the easiest: mechanisms such as notice and comment help agencies make better decisions. The next part, though, is harder: does the presence of a right to be taken seriously make our government institutions more democratic? Commentators assume that it does. But standard theories of democracy and administrative law, I argue, don’t provide satisfying basis for that conclusion.
I argue nonetheless that a more satisfying basis exists, and that to see it, we should focus less on the individual’s ability to comment than on the government’s obligation to hear, engage, and respond. That requirement puts governors and governed in a discursive relationship. It compels the state to engage in communicative, reason-based, discourse rather than the mere exercise of power. The government’s obligation in this manner to show respect, to treat commenters as democratic citizens rather than as objects of paternalistic control, is at the heart of the right to be taken seriously and its democratic bona fides.
But there is, as always, a catch. I ground the democratic function of the right to be taken seriously in a theoretical understanding of democracy and, in part, in Habermas’s conception of communicative rationality. But is this theory reflected in the everyday practice of notice-and-comment? The answer is no; not really. In practice, agencies are often swamped by comments and pay serious attention to only some of them. They attend to those comments filed by repeat players with instrumental power, and may send the rest off to outside contractors to be ignored. While the interaction, even in this limited form, has value in bringing information to the eyes of the agency, it’s harder to argue that it’s meaningfully democratic or democratizing.
To illuminate this gap between theory and practice, I turn to some history. The right to be taken seriously isn’t just a product of post-WWII environmental and administrative-law statutes. It has roots, rather, in a striking and neglected place: the historic understanding of right of the people, guaranteed by the first amendment, "to petition the Government for a redress of grievances." The first amendment’s petition clause initially was understood to incorporate the same dialogic commitment as the modern right to be taken seriously: citizen expression of policy views coupled with an government obligation to attend to that input, to consider it on the merits, and to respond.
That older understanding of the petition clause has disappeared today, in part a casualty of conflict over whether the 1840s Congress was obliged to receive and respond to petitions relating to the abolition of slavery. More importantly, the old understanding of petition died because it was the product of an pre-liberal political culture in which the relationship between citizens and governors was one of organic reciprocal obligation, not one of mass politics and electoral control. The old right to be taken seriously was rooted in the grace owed by a royal sovereign; it wasn’t susceptible of legal enforcement, and it fit uneasily in a new world in which voting was the key link between citizen and government.
When the new right to be taken seriously reappeared in modern administrative law, it was accompanied or the first time by an enforcement mechanism: the courts’ determination to reverse agency decisions where the agency had neglected adequately to address facts and arguments raised in public comments. Yet that enforcement mechanism turned out to be too blunt an instrument. Courts can’t compel agencies to attend to all comments; those that best reflect mass public sentiment are in one respect the most easily ignored.
The right to be taken seriously is appealing because it promises that government will respond to citizens dialogically – that is, it will respond as if the relationship between government and citizen were the same sort of human relationship we have in those aspects of everyday life not driven by marketplace or government authority. Yet today as in the eighteenth century, that promise reaches beyond the limits of legal enforceability.
The institution of notice-and-comment is tied to the idea of a dialogic, discursive relationship in which government must show the citizenry the respect of explaining itself – of hearing public comments and responding to them directly. That sort of relationship builds connection because it creates a sense that governors and governed are part of a shared community. But it’s not really true. Agency members read public comments because they fear judicial reversal, not because they respect the commenters as individuals. There is no getting away from the instrumental nature of that relationship. And, in the end, that undercuts the democratic connection that the right to be taken seriously might otherwise make.
Keywords: openness, participation, rulemaking, democracy, petition, legal history
JEL Classification: K23
Suggested Citation: Suggested Citation
Weinberg, Jonathan, The Right to Be Taken Seriously (February 29, 2012). Wayne State University Law School Research Paper No. 2012-01. Available at SSRN: https://ssrn.com/abstract=2013567 or http://dx.doi.org/10.2139/ssrn.2013567