A Good Outcome Doesn't Make a Good System

One of the biggest mistakes we make in public life is evaluating institutions by their outcomes instead of by their design.

A system produces a result we like, and we conclude that the system must be working. A court reaches what we believe is the correct decision, so we defend the court. A government agency ultimately reaches the right conclusion, so we assume its procedures are fair.

But a good outcome doesn't necessarily mean we have a good system. Sometimes a flawed institution simply gets the right answer. This week, two completely unrelated stories reminded me why that distinction matters.

Forget the outcome for a moment.

Imagine I asked you this question: Would you design a child protection system in which an anonymous report relaying an unverified allegation could trigger government investigators arriving at a family's home, temporarily separating parents from their young children, and conducting forensic interviews of four-year-olds without their parents present?

Would that strike you as the right balance between protecting children and protecting families from unwarranted government intrusion?

Most people would probably hesitate before answering yes.

Yet that is essentially what happened to former U.S. Transportation Secretary Pete Buttigieg and his family.

According to Buttigieg, an anonymous caller reported hearing that he had previously admitted to committing horrific acts against children. The caller had no firsthand knowledge of the alleged conduct; the report was based on what someone else had supposedly said Buttigieg had confessed to years earlier.

Despite that, the allegation triggered a child protection investigation. Police and Child Protective Services came to the family's home, Buttigieg's four-year-old twins underwent forensic interviews without their parents present, and he and his husband were instructed not to be alone with their children while the investigation proceeded. Authorities ultimately determined that the allegation was unfounded.

The outcome was the right one.

The state took the allegation seriously. It investigated. It concluded there was no evidence to support the accusation. Had the allegations been true, the children would have needed protection, and the state has both the authority and the responsibility to intervene when children are genuinely at risk.

This is not an argument against child protection. Children are uniquely vulnerable and protecting them is one of government's most important responsibilities.

The question is not whether the state should investigate allegations of child abuse. It should.

The question is whether this is the system we would deliberately design to do it.

• How much evidence should justify each level of government intrusion into a family's life?

• Should an anonymous report repeating an unverified allegation be sufficient to trigger this kind of intervention?

• What procedural protections should parents have?

• Could we protect children just as effectively while providing stronger safeguards against false accusations and unnecessary intrusion?

Those are institutional design questions. The fact that the system ultimately reached the correct result does not answer them.

Now consider a different institution.

Suppose I told you we were creating the judicial branch for a brand-new constitutional democracy.

Would you design a system in which nine life-tenured judges can, through a single decision, fundamentally alter the constitutional rights and legal obligations of hundreds of millions of people, with almost no realistic accountability for those judicial decisions?

Maybe you would.

I wouldn't.

This month, the Supreme Court reached what I believe was the correct result in United States v. Hemani. The government had prosecuted a man, who admitted to using marijuana “about every other day,” under a federal law that prohibits firearm possession by an "unlawful user" of controlled substances. The Court rejected that application of the law, concluding that the government had not justified permanently disarming someone based on the historical tradition required by its Second Amendment jurisprudence.

I agree with that outcome. What I don't agree with is how we got there.

The opinion illustrates the increasingly strange world created by the Court's modern historical-analogy approach to constitutional interpretation.

Instead of asking the straightforward constitutional question—whether the government has sufficient justification for restricting the Second Amendment rights of an occasional marijuana user—the analysis becomes a debate over eighteenth- and nineteenth-century history.

·       Were there laws in the 1780s that disamred habitual drunkards?

·       How common was alcohol abuse during the Founding era?

·       Would the Founders themselves have been considered habitual drinkers?

·       Are those historical practices sufficiently analogous to modern marijuana laws?

Think about what we're actually doing. We're deciding the constitutional rights of twenty-first century Americans by debating how alcohol was consumed more than two hundred years ago.

That methodology happened to produce a result I support. But if we were designing a constitutional court today, would we really choose this method for deciding modern constitutional disputes?

And would we really give so much authority to so few people?

Whether the Court uses its authority to recognize a constitutional right to same-sex marriage, as it did in Obergefell, or to eliminate the previously recognized constitutional right to abortion, as it did in Dobbs, the institutional question is exactly the same.

Is this the body we would choose to make decisions of this magnitude?

It's easy to assume the American model is simply how constitutional democracies work.

It isn't.

Around the world, democracies have adopted very different approaches to constitutional review. Some rely on specialized constitutional courts whose only job is deciding constitutional questions. In many countries, judges serve fixed terms rather than lifetime appointments. Some require appointments by multiple political institutions to encourage ideological balance. Others allocate constitutional authority differently among courts, legislatures, and the people themselves.

The United States also has mechanisms for responding to Supreme Court decisions, but they depend on the type of decision. If the Court is interpreting a statute, Congress can amend the law—as it has done on numerous occasions. If the Court is interpreting the Constitution, however, ordinary legislation is generally not enough. Reversal ordinarily requires either the Court itself to change course in a future case or the far more difficult process of adopting a constitutional amendment.

None of these approaches is perfect. The point isn't that another country's model is necessarily better. The point is that institutional design involves choices. The American Supreme Court—with nine life-tenured justices exercising extraordinary authority over constitutional meaning—is one model. It is not the only one.

Which brings us back to the question we should have been asking all along:

• Would we design a constitutional democracy this way today?

• A system in which nine life-tenured judges can, through a single decision, fundamentally alter the constitutional rights and legal obligations of hundreds of millions of people, with almost no realistic accountability for those judicial decisions?

I wouldn't.

Would you?