Tyranny of the 10,000 Institutions

Contributed by William N. Brown

Dr. Joshua Kleinfeld is a professor at Northwestern University’s Pritzker School of Law. He holds a J.D. in law from Yale Law School, a Ph.D. in philosophy from the Goethe University of Frankfurt, and a B.A. in philosophy from Yale College. During February’s Conservative and Republican Conference, Dr. Joshua Kleinfeld discussed the left’s use of “10,000 institutions” to suppress the conservative majority. He argued that returning power to the people was necessary to restore self-governance.

This interview has been edited for length and clarity.

SALIENT: As a professor, you specialize in legal and political philosophy, constitutional law, statutory interpretation, and criminal law. What thread binds these areas together and makes them all of interest to you?

KLEINFELD: I'm interested in whether the ideals of democracy are realized in practice. The thing that most inspires me about our constitutional tradition is the “We the People” portion of it—the ideal of a self-governing society that reflects the convictions of the majority in a manner consistent with individual rights. That's a question of singular concern in constitutional law, where there are questions of how to design a government to effectuate the voice of We-the-People. But democratic ideals also come up in statutory interpretation, because when Congress speaks as the representative of the people, the role of judges is to figure out what it said and how courts can be faithful to it. And those ideals come up in criminal law, because criminal law can only perform its necessary social function when it is responsive to a community's moral convictions. In my scholarship, I’ve worked to develop the idea that criminal law exists to re-stitch a torn social fabric. Crime is a breach in our society's normative order. The purpose of punishment is to stitch it back together. It can only perform that vital function if it responds to community norms and has a democratic political organization.

So, when you put it all together, I’m writing in philosophy about the concept of democracy – what a democratic society is supposed to be in the abstract – and I'm writing in law about the realization of democracy in three areas that particularly involve democratic ideals: constitutional law, which is the We-the-People area; statutory law, which is the voice of Congress; and criminal law, which is the most communitarian of all areas of law.

SALIENT: How did you come to this set of concerns, biographically speaking?

KLEINFELD: I grew up in Fairbanks, Alaska. My mom was a university professor at the University of Alaska Fairbanks in the Education Department. In Alaska, there is a lot of identity politics, but it's not the kind of identity politics that you have in what we call the lower 48. It was mostly about Native Alaskans—Eskimos and Athabaskans. When I was about 13 years old, my mom stepped on one of the third rails of that time. She said, in a meeting, that the University of Alaska education department was engaging in grade inflation for Native Alaskan students, and thereby certifying people as teachers who weren’t qualified to be teachers. That was one of those things that everyone knew but no one could say. And it seemed like the whole state exploded. She was denounced and protested. She was under death threats and needed a guard at certain points. It made an overwhelming impression on me, and not only because I was naturally loyal to my mother. It was early exposure to the power of what was then called political correctness and identity politics, and is now called woke politics. When I was experiencing this in the 90s, as a little boy, many people thought that this was just an obsession of the universities, which would blow over, which would have no impact outside the universities, and which students would outgrow when they got into the “real world.”  Time has shown that those people were utterly, profoundly wrong. They underestimated the power of ideology. They underestimated the power of identity. Really, they underestimated the power of universities as institutions, which is the power to certify ideas and to certify people on the basis of whether they believe those ideas. What is now called the woke movement—identity politics, political correctness—is one of the most powerful political movements in American history, and it has taken over or impacted virtually every institution in American life.

Over time, it became clear to me that what is now called the woke movement is fundamentally at odds with a society governed by “We the People.” The movement is minoritarian in its concept of justice, in that it focuses politics on the interests of small groups rather than large majorities. And it’s minoritarian in the way it gains and exercises power, because it dominates politics despite the fact that most people do not agree with it. The vast majority of voters do not agree that America is a white supremacist nation. They don't agree that the relationship between men and women is one of pure patriarchal power. They see correctly that the power dynamics involved in gender relations are complex, and that, although there are problems in need of correction, the categories of “male” and “female” are not in themselves forms of oppression. Americans overwhelmingly oppose race-based preferences in college admissions and hiring policies. It's been polled 1000 different ways from Sunday, it’s been the subject of multiple referenda, and large majorities of Americans do not think race-based preferences are just. Looking at the matter more broadly, most Americans do not think the world can simply be split between oppresser and oppressed groups based on identity, and they do not think justice simply means favoring the groups labeled oppressed. But all of those views that I’ve just referenced, or views analogous to them, which Americans on the whole do not agree with, dominate virtually every institution in American life.

You would expect, in a well-functioning democracy, that state action, and more broadly the public sphere, would reflect majority convictions. Yet they don’t. There is an extensive body of empirical political science looking at the creation of law and policy and comparing it to majority views. The empirics show that, overwhelmingly, American policy is unresponsive to majoritarian preferences, but highly responsive to the preferences of an educated elite and the institutions controlled by the educated elite.

The solution is to restore majoritarian democracy to practical control of American public life. To make society reflect the ethical convictions of We the People.

SALIENT: I suppose you could say that I can see Hegel working in some of these points. The idea of institutions as a codification of the moral spirit of the people—

KLEINFELD: I wrote my dissertation on the Hegelian concept of Sittlichkeit, which translates to “embodied ethical life.” I'm a Hegelian. And I also think that these phenomena reflect historical processes that Hegel identified.

SALIENT: In Hegelian terms, then, what keeps the people from their rights, or if not their rights, then their ability to influence these institutions? How can an institution be separated from the ethical life of the people?

KLEINFELD: These institutions are controlled by members of a social elite. They’re insulated from popular control because the people who are ill-served by their decisions are unable, through the tools of majoritarian political power, to influence them.

Sometimes there are objections of a moral nature to the people’s influence. But much of the institutional immunity is just assumed, and the assumptions aren’t questioned or even noticed.  Take our universities. Harvard and Berkeley are two of the most famous brands in the world. They're some of the wealthiest institutions in the world. They're some of the most populous, that is, there are tens of thousands of people immediately associated with them. They're engaging in practices with which most of the country radically disagrees, or would disagree if they knew about them. With exceptions, they choose students, faculty, and leadership on a pervasively identitarian and ideological basis. These institutions exist within a society, but their institutional practices are completely at odds with the norms of the society in which they sit.

It doesn't have to be so. Why does Berkeley get to choose its own students? Why does the University of Texas? These are public universities. They exist to discharge a public function. The question of who gets into them is a question of public concern. And yet we assume that public universities can have internal and secret policies for accepting students. Why? Imagine alternatives. Perhaps an administrative agency in the executive branch, under the governor's control, picking the students. Perhaps allowing public high schools to pick them.

Likewise, although there are already certain structures for controlling public universities’ leadership, like boards of trustees, they don’t produce real political accountability. But why do we accept that? The typical appointment process for high offices involving the public trust is appointment by the President with the advice and consent of the Senate or, at the state level, either by election or by the governor, sometimes with the advice and consent of the state legislature. Why do we accept a different process for the leadership of public universities? And I don’t just mean the president of the university; I also mean the provost and the deans.

Most controversially, we assume that professors at public universities should be selected by other professors. There is some justification for that on grounds of expertise. But that level of insulation also carries risks. For example, it allows a splinter movement within a field to control new entrants to the field if it can control a department or a critical mass of departments. Fraternity hiring structures often lead to ideological capture. That kind of control doesn’t necessarily reflect merit. It reflects power. Consider an analogy to the judiciary. Judges are like academics in that they also need to be experts within a field, and they also need to be protected from wrongful removal to do their work with integrity. But we don’t think either of those things mean that the existing judiciary gets to pick all new judges with no democratic input. I was a summer clerk for the Israeli Supreme Court, and in Israel at that time, the process for picking new judges essentially allowed existing judges to pick new judges, with no real control from the Israeli prime minister or legislature. As you can imagine, that process created a judiciary that looked a lot like the faculty of Harvard Law School—unsurprisingly, because they were appointed in the same way as the faculty of Harvard Law School. The judges were extremely powerful, very left-wing relative to the country, and there was no way for the political branches like the Prime Minister or the Israeli legislature to supervise them even at the appointment stage. We hear that and think it’s crazy. Is the Israeli process necessary for judicial independence? Not according to the U.S. Constitution. Analogize that to the argument that existing professors should be able to determine all future professors. It’s possible to give people tenure protection against removal, in order to preserve judicial independence or academic freedom as the case may be, without giving them the power to select their own membership in the first place.

Now take the case of Harvard. Harvard, as a private university, has a genuine claim to be self-directing. But the ship sailed on complete institutional independence with the 1960s civil rights movement, or even with the 1930s regulatory movement. Private universities have to comply with a variety of policies that we think are more important than their private power: for example, we do not let them discriminate against racial minorities. In fact, private universities are so entwined with state action today that they aren’t truly “private” in the traditional sense at all. So while Harvard and other quasi-private universities  should have more independence than public universities like Berkeley, there are still limits that can be set by law as to how they select students, professors, and administrative leaders.

What I’m doing here is pointing out a series of insulated processes by which an internal elite controls institutional structures, even those that discharge a public function. Most of that control is just assumed; it isn’t even questioned. Then, when people do propose a democratic intervention, it’s often decried as a violation of principle – in the case of universities, typically a distorted and misunderstood version of the principle of academic freedom.

My larger point is to ask why our democratic forces are unable to do something about the institutions that comprise our public life. It’s partly unquestioned assumptions. Partly, it’s that the institutional actors are very politically powerful. Partly, it's that institutional actors have control over information. Partly, it’s the idea that to intervene would violate some principle, which leads to disunity among the people who might otherwise be expected to do something. And finally, it's because the voice of We-the-People is highly diffuse. A tightly focused ideological minority can prevail over a diffuse majority.

We have a putatively democratic country. There's a people with views, preferences, and interests—the We-the-People. Our institutions defy them. The reasons are complex. How did we build a country whose dominant principle is elite governance under a Constitution designed to create a democratic republic? A variety of techniques of power are required to make that possible. Those techniques of power are fascinating, but also diabolical, and they’ve taken something precious from us: control over the shape of our shared public life.

SALIENT: I take it that democratic legislation reasserting popular control is part of the answer. If that's the way that institutions like universities can be changed for the better from the outside, what do you recommend that conservative students do from the inside? 

KLEINFELD:  Certain strains of conservative thought disdain popular power. Maybe they take voting in elections as axiomatic, if only because it’s settled by law and practice, but these types of conservative valorize every countermajoritarian limit they can find. Equally, certain traditionalist strains of conservative thought believe that any democratic interference with public institutions would be unprincipled. They whine about the state of society, but oppose any practical action that might change things. It's a do-nothing attitude. The third strain is the legacy belief that maximizing human welfare almost always means minimizing the government, which in turn means giving institutions as much independence as possible from popular control. The result is a conservative movement that's hostile to democratic action.

Young conservatives have to shake free from these beliefs. That doesn’t mean throwing the baby out with the bathwater: there are insights in the conservative traditions I’ve just mentioned that we should preserve. But young conservatives have to think boldly and pragmatically about changing institutional structures. What is important is power and personnel. That's something the Left saw a long time ago and many conservatives still don't see today. We have to use the power of popular democracy to change the structure of our institutions. And in reforming these institutions, we have to think like constitutional lawyers – that is, we have to think not just about what the right outcome is, but who calls the shots, how they were chosen, and whose values and priorities carry weight. Ultimately, like the 1860s and 1960s civil rights generations, we have to think more clearly about the public/private distinction. What truly is the public sphere? Is it just the state? Or does it include the institutions in which we engage with other citizens in the project of collective life?  Maybe above all, we need to realize that, in a conflict with an ideologically unified elite in control of almost all cultural, economic, and social institutions, popular power is the only way things might change. There’s no source of political power other than voting majorities remotely capable of doing the job. Almost all of the institutions that might otherwise exercise countervailing power are in the same hands. Disdaining popular power in that circumstance is suicide.

People of my father’s generation often refuse to think about those sorts of things. It's a project of the next generation to think about them.

SALIENT: Well, we’ll do our best.

KLEINFELD: Can I offer some policy ideas, just by way of example?

I'm working on a piece right now proposing parent proxy voting, the idea that parents should have the right to vote on behalf of their minor children. That legal change could be implemented by any state legislature; it does not require Congress. It would, in my view, survive any reasonable constitutional challenge. And it would have massive effect. 23% of the citizenry is below the age of 18. That’s a pro-democracy reform that would dramatically change the political incentives facing both parties.

Here's another policy idea. The Department of Education should maintain a ranking of universities based on free speech and intellectual diversity, using rigorous empirical criteria. It should be a mechanical fact that the universities in the bottom 20% are ineligible for federal funds. Not a dollar should leave the education sector but the money that would otherwise go to the bottom 20% should get redistributed to the top 80%. So you're not depriving universities of governmental funding, you're just saying that an educational and research environment the American people are willing to support with taxpayer funds is one with a modicum of free speech and intellectual diversity. Even a place with a multi-billion dollar endowment would balk at maintaining anti-free speech and anti-intellectual diversity practices at the cost of their federal funds. You could increase the pressure by saying that, if a federal grant has been given to a researcher at an institution in the bottom 20%, it will follow the researcher if he or she moves to a university in the top 80%. That will affect personnel, which is the most important thing.

Here's another idea. One way of thinking about the Civil Rights Act is that it effectuated the Equal Protection Clause by extending it to private institutions. We should have an Effective First Amendment Act that extends the protections of the First Amendment to private institutions. This would not include religious institutions because the First Amendment itself sets aside religious institutions. But there's no reason that the rights to free speech, freedom of assembly, and freedom of conscience should not be applied against institutional actors. At Northwestern, at Harvard, at Berkeley, at any number of universities, you can get effectively brought up on charges from the DEI bureaucracy if you say something considered “unacceptable.” Likewise at many private corporations and other employers. Why not make all of these institutions subject to the First Amendment? Most Americans already think their First Amendment rights are sacrosanct, that they can be no more invaded by their employer than by a state actor. They’re right. We should enforce their instinct by statute.

SALIENT: Do you have any words of advice on the personal level for conservative students at Harvard?

KLEINFELD: At institutions like Harvard—maybe all institutions, but especially elite institutions—it is easy to lose hope. The overwhelming majority of people around you not only disagree with you, but in many cases think there's something wrong with you as a person because you disagree with prevailing ideas. If you go to Harvard and then you go on to a successful career, you’re probably going to leave one elite institution for another, which will be dominated by the same ideology. So you pass from environment to environment where you're overwhelmingly outnumbered. This leads to the kind of deep alienation that Marx and Durkheim discussed. There’s a natural human desire to feel that our own personhood is reflected, echoed, even improved by the institutions in which we participate. But when the institutions of society are as left wing and as unified as they are in America today, it is your fate to feel alienated. The challenge is to hang on to hope. It has to be a rational hope, if only because a thinking person can't be hopeful without cause. For a lot of religious people, hope is providential. That’s a rational basis for hope if you are religious, but what if you’re not? Even then, I would argue, there are still grounds for hope. Here’s one: as much as you’re outnumbered and outgunned in elite institutions, you aren't in American society more broadly. That is one source of hope for me.

Thumbnail photo from Northwestern Pritzker School Law.