« Kian Hudson on Originalism
Michael Ramsey
| Main | Jack Balkin: Translating the Constitution
Michael Ramsey »

08/17/2019

John O. McGinnis: The Court, the Fed, and Our Mixed Regime
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) has posted The Court, the Fed, and Our Mixed Regime (29 pages) on SSRN.  Here is the abstract: 

This essay argues that the enduring political concept of the mixed regime is a better way than the separation of powers to understand the operation and dilemmas of the two institutions most central to our market, rule-of-law society—the Supreme Court and the Federal Reserve. The theory of the mixed regime asserts that combining popular and aristocratic elements produces a more stable and flourishing polity than relying on democracy alone. In our regime that aristocracy is the intellectual professional elite who dominate the functioning and culture of these institutions and largely determine how they will change. But in a society that appears on its surface to be democratic, the mixed regime gives rise to similar dilemmas for both these institutions, such as a countermajoritarian nature that is in tension with popular will, an insulated decision making that is in tension with benefits of broader inputs, and a discretionary power that in tension with stability that a mixed regime is supposed to deliver. These dilemmas lead to periodic pressures for both institutions to subject themselves to rules, such as originalism for the Court and the Taylor Rule (a fixed formula for interest rate changes) for the Fed. Because intellectual elites ultimately protect the independence of both institutions and underwrite their stability, their growing polarization threatens to undermine the continuity and beneficence of our mixed regime.