61 Pages Posted: 30 Mar 2005
On a conventional understanding of dissent, dissenters have two choices with regard to governance: act moderately or speak radically. To the extent that would-be dissenters want to govern - to wield the authority of the state - they must bargain with their votes to gain concessions from the majority. Would-be dissenters who deploy this strategy take part in an act of governance, but it is governance of a moderate sort. Alternatively, would-be dissenters can speak radically by freely stating their views in a dissenting opinion or minority report. In doing so, dissenters sacrifice the chance to be part of the governing majority; they speak with a critical rather than authoritative voice.
What is missing from the usual account of dissent is a third possibility: that would-be dissenters could act radically. We have trouble envisioning dissent taking the form of a governance decision. Our conventional intuition is that dissenting means speaking truth to power, not with it. After all, we might think, if would-be dissenters had enough votes to control the outcome of a decisionmaking process, they wouldn't be dissenters anymore. Dissenting by deciding seems like a contradiction in terms.
The main reason we overlook the possibility of dissenting by deciding is that we tend to conceive of democratic bodies as unitary. Where decisionmaking power is disaggregated - as with juries, school committees, or local governments - global minorities can constitute local majorities. Disaggregated institutions can thus allow dissenters to decide, to act on behalf of the polity.
One example of dissenting by deciding occurred when San Francisco spent several weeks marrying gay and lesbian couples. The principle embodied in San Francisco's decision was no different than the argument found in editorials, judicial dissents, and ongoing public debates. What was different was the form dissent took. Dissenting by deciding can also take place when a school board mandates the teaching of creationism or a jury engages in nullification. These decisionmakers subscribe to the same set of commitments held by individuals whom we would unthinkingly term dissenters. But they express disagreement not through conventional means, but by offering a real-life instantiation of their views.
Dissenting by deciding, then, should be understood as an alternative strategy for institutionalizing channels for dissent within the democratic process. But because dissent has not been conceptualized in these terms, scholars have not given adequate thought to which form of dissent is preferable, and when. This paper takes a first step in that direction. The payoff for thinking about dissent in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.
Keywords: dissent, local government, jury, First Amendment, federalism, politics of recognition, identity, race, democracy, Sunstein, self-governance, gay marriage
Suggested Citation: Suggested Citation
Gerken, Heather, Dissenting by Deciding. Stanford Law Review, Vol. 56, 2005. Available at SSRN: https://ssrn.com/abstract=692682
By Jide Nzelibe
By Grant Hayden