How 'Decentralization' Rationalizes Oligarchy: John McGinnis and the Rehnquist Court

Abstract

“Decentralization” sounds wonderfully democratic. It implies that people are becoming masters of their own destinies, freed from the oppression of distant functionaries who neither know nor care about the particulars of their lives. Strangely, however, “decentralization” can sometimes be deployed to disguise oligarchic rule by an unaccountable elite. The paradox is starkly, if inadvertently, displayed in John McGinnis’s explication and defense of the Rehnquist Court’s decisions on federalism and free association, “Reviving Tocqueville’s America.”

Professor McGinnis argues that decentralization is a central theme of the Rehnquist Court’s jurisprudence. He claims that this idea justifies the court’s work, in the same way that John Ely’s representation-reinforcement theory justified much of the work of the Warren Court. His attempted justification fails, however, because the idea of decentralization cannot be implemented in the way he contemplates without policy determinations that are essentially legislative. “Decentralization” thus becomes a rationalization for judicial oligarchy.

Keywords: John McGinnis, Rehnquist Court

JEL Classification: K10, K30