The general institutional framework for policy-making is constitutional democracy.
Let’s start with constitutionalism. Constitutions are entrenched rules, which are more difficult to change than ordinary legislation. They can provide general structure and stability. A constitution establishes the machinery of government, which has three principal dimensions: (a) separate branches or “powers” (executive, legislative, and judicial), (b) checks and balances among the branches (presidential veto, impeachment, judicial review, and so on), and (c) basic political jurisdictions (e.g., Federal Government and States). Polities with plural jurisdictions can experiment at the frontiers of liberty; for example, a number of U.S. States have legalized cannabis since 2012. Moreover, when jurisdictions have different policies about prohibitions, citizens may sort themselves, by internal migration, according to their preferences about frontiers of liberty.
A constitution establishes also a sphere of individual rights. Rights crucial to liberty are (a) freedoms from interference and (b) procedural rights. Enforcement of individual rights requires public resources. Think, for example, of “the right to a speedy and public trial, by an impartial jury” (U.S. Bill of Rights, Amendment VI). However, rights, unlike entitlements, aren’t claims on redistribution. Many people speak of entitlements as rights; for example, “a right to health care.” In my judgment, conflation of rights and entitlements muddies the waters.
Note that “States’ rights” are really a matter of plural, distinct jurisdictions in the machinery of government. Sometimes, States use their jurisdiction and machinery of government to restrict individual rights and liberty. Think, for example, of slavery in the antebellum south. Here, too, conflation of terms—(individual) rights and (State) jurisdiction—muddies the waters.
I find it useful to distinguish two normative conceptions of the nature and scope of individual rights. One conception is instrumental and narrow, the other substantive and broad. The instrumental, narrow one defines rights as freedoms necessary to achieve full and fair democracy in collective decision-making. Think of enumerated rights in the Bill of Rights—freedoms of worship, speech, press, assembly, due process, and so on—and also abolition (Amendment XIII) and equal protection (Amendment XIV). John Hart Ely articulates the instrumental, narrow conception of rights. By contrast, the substantive, broad conception of individual rights establishes a presumption of liberty across the board. Michael Huemer articulates the substantive, broad conception of rights, which Bryan Caplan calls commonsense libertarianism. Think of Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To override a presumption of liberty, then, proponents of a prohibition must make a clear and convincing case (or even a case beyond a reasonable doubt?), and must tailor any prohibition as narrowly as possible.
Constitutions can entrench not only individual rights, but also prohibitions; for example, prohibition of “intoxicating liquors” (Amendment XVIII, repealed by Amendment XXI). Moreover, the U.S. required prohibition of polygamy by Utah, and by other western territories, as a condition of admission to Statehood.
Let’s turn from constitutionalism to democracy. There are two principles to modern democracy: (a) political equality and (b) majority rule. Until recently, political equality was almost everywhere contested. Jon Elster offers an hypothesis why the principle, “one person, one vote,” has come to prevail:
“There has never been a lack of groups claiming a privileged status. The rich, landed property owners, the old, the educated, the intelligent, the nobility, members of the Aryan race or of other ethnic groups, believers of some given religion, and the male half of society have all claimed to be inherently superior to their complements. […] In the presence of many different groups who compete on the basis of their innate quality, only quantity can emerge as a peaceful focal-point solution.”—Jon Elster, “Majority Rule and Individual Rights,” in Stephen Shute, ed., On Human Rights (Basic Books, 1994) 175-216, at pp. 177-78.
At the dawn of modern democracy (1789), Jeremy Bentham identified an intrinsic incentive problem:
“The greater number of voters the less the weight and the value of each vote, the less its price in the eyes of the voter, and the less of an incentive he has in assuring that it conforms to the true end and even in casting it at all.”—Jeremy Bentham, “Considérations d’un Anglois sur la composition des États-Généraux y compris réponses aux questions proposées aux notables” [1789], cited after Jon Elster, Explaining Social Behavior, 2nd edition (Cambridge U. Press, 2015), p. 409.
Now, Jason Brennan raises questions about political equality: “Democracy is the official religion of the West. Now is as good a time as any to question the faith.” Brennan sketches the quality of voter behavior in large electorates, given this incentive problem:
“As an analogy, suppose a jury were deciding a capital murder case. But suppose instead of carefully considering the evidence, the jury found the defendant guilty out of caprice or malice. Suppose a third of jurors paid no attention to the evidence, and just decided, by coin flip, to call the defendant guilty. Suppose another third decided to find the defendant guilty because they dislike his skin color. Suppose the final third paid attention to the evidence, but found the defendant guilty not because the evidence suggested he was, but because they subscribed to a bizarre conspiracy theory.
If we knew a jury behaved that way, we’d demand a retrial. The defendant’s property, welfare, liberty and possibly life are at stake. The jury owes the defendant and the rest of us to take proper care in making its decision. It should decide competently and in good faith.
This line of reasoning applies even more strongly to the electorate as a whole.”
Why, then, do we nonetheless value democracy? Brennan explains and counters:
“We imbue people with the equal right to vote in order to express that they are full and equal members of the national club. […] This widely held view is odd. Democracy is not a poem or a painting. Democracy is a political system. It is a method for deciding how and when an institution claiming a monopoly on legitimate violence will flex its muscles. Government is supposed to protect the peace, provide public goods and advance justice. It’s not in the first instance an institution intended to boost, maintain or regulate our self-esteem.”
Compare Winston Churchill on democracy:
“The foundation of all democracy is that the people have the right to vote. […] At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.”—Winston Churchill, House of Commons, October 31, 1944
Robert Sugden—perhaps in the spirit of Churchill?—argues that political equality is a matter of legitimacy (not exactly the same as self-esteem); and that deference can salvage the quality of voting in democracy:
“[…] no democratic decision-making procedure prevents citizens from deferring to the judgments of those whom they believe to be more competent than themselves. […] My point is that if one group of people perceive another group as more competent than themselves, a democratic system allows the one to defer to the other. […] political institutions must be justified to everyone in terms each person can accept.” —Robert Sugden, “Justified to Whom?,” in D. Copp, J. Hampton, and J. Roemer, eds., The Idea of Democracy (Cambridge U. Press, 1993) 149-54, at pp. 153-54.
Brennan, and also Caplan, take a different tack than Sugden. They advocate reforms of democracy in the direction of epistocracy (rule by those who are knowledgeable); reforms such as restricted suffrage (competence qualification), plural voting, epistocratic veto, and weighted voting.
“one kind of expert—judges— already has some power to overturn popular but misguided legislation. Perhaps other kinds of experts should have similar power. If we let the Supreme Court overturn legislation for being ‘unconstitutional,’ why not let the Council of Economic Advisors overturn legislation for being ‘uneconomical’?”—Bryan Caplan, “Majorities against Utility” (p. 209)
But Caplan also notes a catch-22:
“most of these proposed reforms suffer from a catch-22: Since the majority is already in charge, change requires its consent. To limit the power of the majority, you have to convince the majority that it should have less power.” (p.210)
Brennan proposes to have it both ways:
“One somewhat paradoxical-sounding, but surprisingly reasonable, idea is that we could use democratic procedures to choose a public definition of political competence, which we in turn use to select epistocratic voters. […] the question ‘What counts as political competence?’ is a much easier question than, say, ‘Should we have free trade or protectionism?’ The latter question requires social scientific knowledge most voters lack, but the former question does not.”
Is Brennan’s idea essentially a roundabout (formal, institutional) version of Sugden’s simpler idea of the everyday practice of deference?
I’ve danced around the second key principle of democracy, majority rule. Recall Brennan’s mention of “legitimate violence.” Collective decisions, short of unanimity, operate in the shadow of coercion.
It’s commonplace to downplay the element of coercion in majority rule. We sometimes say, philosophically, “we get the government we deserve.” This saying may be understood in two different ways. Ordinarily, it’s an indictment of voter competence and motivations—a layperson’s version of Bentham’s analysis of endogenous voter laziness. Alternatively, it may be taken as a credo of voter self-paternalism via democracy. The thought is that citizens launder their preferences in the voting booth—Dr. Jekyll, when he votes, binds Mr. Hyde. According to this understanding, prohibitions are self-paternalism rather than coercion. Caplan has a ready retort to this rosy interpretation of majority rule: No, we get the government they (i.e., the majority) deserve. The majority imposes its uninformed preferences or its self-paternalism also on the minority. More straightforwardly, and most likely, the majority simply wants to bind the minority. The political psychology is paternalism, or even authoritarianism, towards others rather than self-paternalism. Thus we have paternalistic or authoritarian tyranny of the majority: We (the minority) get the government they (the majority) think we deserve.
Preference intensity is another thorn for democracy. Often, a minority, who have a great stake in a liberty, find themselves ruled by a majority, who have a lesser stake in the attendant legislative prohibition. Think of military conscripts, African Americans under Jim Crow, and gays. Eric Posner and Glen Weyl have invented an ingenious potential remedy to democracy’s indifference to preference intensity, quadratic voting. Where citizens vote on a range of distinct issues, quadratic voting incorporates individual intensity of preference, mimics logrolling, and preserves political equality (an equal budget of votes for each citizen). Quadratic voting warrants experimentation in the wild.
Let’s return to Bentham’s diagnosis of inadequate incentives for voters to get well-informed. Robin Hanson proposes an ingenious remedy, prediction markets. If bettors wager (i.e., have skin in the game) in thick markets about facts and mechanisms relevant to policy-making, then the odds that emerge can inform citizens efficiently. Voter deference to apt markets for purposes of belief-formation can be more reliable than deference to experts, and surely superior to deference to pundits and grandstanders. Citizens could vote on values, after forming beliefs about processes of change by following prediction markets. For example, there might be integrated prediction markets about (a) prevalence of drug use at a specific future date, and (b) enactment of a specific policy of drug legalization in the current legislative session.
Demarcation of individual rights from majority rule, or of constitutionalism from democracy, can shift in history in a given polity, and can vary among countries. I mentioned that the locus of policy in the U.S. about intoxicating liquors shifted from democracy to constitutionalism (1919), and then back again (1933). Abortion policy in the U.S. traditionally fell to States’ jurisdiction (decentralized legislation) until the Supreme Court (Roe v Wade, 1973) declared abortion an individual right protected by the Constitution. By contrast, in Italy, at about the same time (1978), a standing national legislative prohibition of abortion was repealed by direct democracy (majority rule in a national referendum).
The next blogpost will be about standard rationales for prohibitions. If you would like background readings, I recommend Gerald Dworkin, “Paternalism,” and Alvin Roth, “Repugnance as a Constraint on Markets.”
John Alcorn is Principal Lecturer in Formal Organizations, Shelby Cullom Davis Endowment, Trinity College, Connecticut.
READER COMMENTS
nobody.really
Sep 16 2019 at 2:42pm
John Rawls? Will he be on the reading list eventually?
John Alcorn
Sep 16 2019 at 4:13pm
Rawls’ principle, “public reason,” is similar in spirit to Sugden’s dictum, “political institutions must be justified to everyone in terms each person can accept.”
There are several key concepts and principles in Rawls’ theory of justice: (a) thought experiments (“the original position” and “the veil of ignorance”) for social-contract theory, (b) “the difference principle” for distributive justice, and (c) “the law of peoples” for international relations. I will discuss them in the context of international migration.
nobody.really
Sep 17 2019 at 1:20pm
I was specifically thinking about Rawls’s social contract theory–and how it challenges your foundation premise about the primacy of freedoms from interference and procedural rights.
What would lead a person to conclude that “rights crucial to liberty” include freedoms from interference and procedural rights, but not, say, air? food? shelter? protection from infectious disease? or protection from natural disasters or sheer bad luck?
Joe owns a plot of land infested with rats infested with fleas infested with the plague. The rats spread plague everywhere, leading to an epidemic. Yet we have no evidence that Joe caused the rats; they appear to be natural. Do Joe’s rights “crucial to liberty” include the right to prohibit anyone from interfering with his rat-generating property?
Throughout history, more people have died from infectious disease than from government oppression. Periodic wars are a problem, sure, but the fact that people upstream from us keep dumping their sewage in the river is a vastly more lethal problem. Yet social contract theory, with its emphasis on autonomy and consent, leaves us with few tools to address these problems. Who would ever embrace such a theory?
Answer: People who were sufficiently privileged as to imagine that these problems somehow magically solved themselves, and thus were free to focus on the few things that threatened them–specifically, overweening government. In short, this obsession with autonomy and consent over concerns about, say, food, reflects a peculiarly biased view.
Rawls proposed a different version on social contract theory that invites us to transcend the parochial concerns of traditional social contract theorists. It invites us to address concerns that pose major threats to the other 90% of the population.
Of course, I also care about consent and overweening government, so I won’t fault you for choosing to make that your focus if that’s you’re inclination. I just wanted to note one alternative view as you lay your foundational arguments.
John Alcorn
Sep 18 2019 at 8:05am
I would say that you’re asking two distinct questions:
(a) Why aren’t (what I call) entitlements rights? There is a conceptual distinction between redistribution and liberties. Entitlements to food (SNAP), shelter (Section 8), and health care (Medicaid) are matters of redistribution. Redistribution presupposes production. Therefore, entitlements depend on economic incentives. A Rawlsian might conclude that rights (liberties) and entitlements (redistribution) are both justified, but should reckon with the conceptual distinction and economic constraints.
(b) May freedoms from interference be abridged to prevent negative externalities (i.e., adverse side-effects on others). The short answer is, “Yes, but … .” I will address this in subsequent posts.
nobody.really
Sep 18 2019 at 3:56pm
Fair enough. But do not liberty rights likewise presuppose the existence of an elaborate apparatus (police, courts, jails, etc.) to enforce them? Do not the cost of enforcing these rights presuppose production? And do these costs thereby limit the extent of liberty rights?
Arguably yes. What does “religion” mean for purposes of the 1st Amendment? One theory holds that it means “attitudes held by groups that are sufficiently large and well organized to be burdensome for government to oppose, and thus government will make a virtue of the necessity to accommodate them.” Accordingly, there was no religious right for Henry David Thoreau to refuse to pay taxes to support slavery—because there was no coordinated effort supporting him. But when Hobby Lobby refuses to pay a tax because it opposes contraception, this DOES implicate a religious liberty—because there’s a large lobby supporting it. Religion is a matter of economics.
Fair enough. Of course, the definition of “externalities” depends upon where one draws the line between the internal and the external—and that line largely reflects a social choice. At one time, people who could not abide cigarette smoke had to closet themselves away; today it is the smoker who must find their own place to accommodate their habits. At one time, farmers had to bear the cost of fencing out cattle; today it is the rancher to must bear the cost of fencing in his cattle. It was not the smoke or the cows that changed; it was society.
Rare is the example of an infectious disease controlled by market forces alone; overwhelmingly they are controlled by government action—funded via COMPULSORY taxation, enforced via COMPULSORY means.
But I sense we’re getting ahead of ourselves. I look forward to this discussion.
John Alcorn
Sep 18 2019 at 6:24pm
@ nobody.really,
Two telegraphic points:
I have a right of free speech, but not an entitlement to a printing press or radio station. Etc.
An abundance of prohibitions greatly increases the cost to the public purse of the right to a speedy and public trial, by an impartial jury. Nonetheless, the Federal judiciary budget remains an order of magnitude smaller than SNAP.
Phil H
Sep 17 2019 at 12:07am
This is very good, though I think you slightly misconstrue individual rights. They are in fact limitations on government: They define the things that governments can and cannot do to individuals. In most rights, that’s explicit: e.g. British/European HR law is about limiting the actions of government organisations, and many of the rights on the US BoR include wording like “the state shall not”.
I also don’t think the term “majority rule” is very helpful, as no major state actually has majority rule. They all have constitutional democracy, which involves majority voting as one step – an important step, but only one of many – in the formation of policy.
Finally, to the definition of democracy, I propose that free speech be added. It’s usually treated as a separate subject, but the reality is that democracy over a large polity is necessarily mediated through the media. Their role is vital, and their freedom must be assured, or democracy simply doesn’t work. I live in China, where we have voting, but no-one would think this country is democratic. The reason is there is no *informed* voting.
John Alcorn
Sep 17 2019 at 6:31am
PS: Bryan Caplan dismisses quadratic voting in his latest podcast interview:
robc
Sep 17 2019 at 8:43am
I agree with Bryan. I think the only change to fix that problem is to expand the HoR to something along its original representation. If the House was truly a local race, limited to about 30k people, your vote matters more than a House district of 700k.
At that point, there is also very little need for modern style gerrymandering. Districts can truly represent areas well, without needing to carve out weird majority-minority districts and etc.
robc
Sep 17 2019 at 9:00am
I think the 1789 proposed amendment would have been a good idea, with an “and so on” added to the end:
By my quick calculation, that would mean 1625 members of the House representing 190k people each according to 2010 census.
John Alcorn
Sep 17 2019 at 9:43am
In support of your point:
A legislative assembly of 1,625 members also might make use quadratic voting to reflect intensity of preferences, insofar as logrolling by traditional methods (networking, party whips) is more difficult than in an assembly of 1,625 members than in an assembly of 435 members (the current size of the House of Representatives).
Henri Hein
Sep 17 2019 at 9:38pm
Good synopsis.
I generally agree with Jason Brennan in his critique of democracy, but I am not sure about epistocracy. I’m not convinced political knowledge transfers into social science knowledge of the kind we would want, or that this new system wouldn’t be subject to the same manipulations as the current one. It does sound like an improvement over the status quo, though.
The original Greek democracy used randomness. This is a feature that modern discussions of democracy never brings up. I think this is a mistake; randomness can be a great leveler of the kind democracy aspires to effectuate.
The “one person, one vote” principle seems to be rendered infeasible by the Arrow Impossibility Theorem. I hope you will cover that in a future entry.
John Alcorn
Sep 18 2019 at 3:25am
Thank you for bringing up the use of randomness in democracy. Recently, there has been a revival of interest in this topic among political theorists. Equality by Lot: The Blog of the Klerotians is a handy online resource for exploring this research field.
Howard DeLong proposes to make deliberative democracy efficient by using sortition (random selection of citizens) to constitute political juries, which would hear expert witnesses, deliberate about policies, and perhaps eventually act as a fourth branch of government in an enlarged system of checks and balances. The thought is that a three-step mechanism—sortition + education + deliberation—might efficiently reconcile democracy and epistocracy. (Recall that Jason Brennan proposes a two-step mechanism.)
nobody.really
Sep 18 2019 at 2:34pm
My colleague participates in the <a href=”https://cdd.stanford.edu/2019/america-in-one-room/”>America in One Room</a> project, which evaluates the extent to which a representative sample of a population can and will achieve some greater level of consensus when presented with “neutral” sources of information. Participants hear from experts, discuss, and vote.
Clearly, one challenge is to persuade the sample that the information presented is “neutral.”
But another challenge may relate to sampling. In real sampling, you OVER-sample minority groups, so as to minimize the consequences of a few atypical representatives of that group, but then adjust the final tally of results to make the number of votes from each group reflect its size in the overall population. Will America in One Room invite a disproportionate share of Jews to participate, but then count each Jewish vote less than the other votes? This arguably creates a conflict between sampling theory and the one-man-one-vote ritual of democracy.
Henri Hein
Sep 18 2019 at 3:35pm
Thanks for the pointers. Fascinating stuff – now I have some reading to do.
John Alcorn
Sep 18 2019 at 4:03pm
Re: “The ‘one person, one vote’ principle seems to be rendered infeasible by the Arrow Impossibility Theorem. I hope you will cover that in a future entry.”
The article by Posner and Weyl about quadratic voting (see link in my blogpost) touches on your point:
nobody.really
Sep 24 2019 at 3:13pm
I also favor a presumption of liberty as a matter of policy–but the 9th Amendment doesn’t provide that. Rather, it exists merely to rebut a presumption that the Bill of Rights reflects the EXCLUSIVE list of rights. In other respects, it’s simply a tautology. The 9th Amendment applies only to the extent that a person can cite some OTHER authority for the proposition that people have some contested right. And if you can cite such authority, then what does the 9th Amendment add?
(Compare to the BSA Oath: “On my honor, I will do my best to do my duty to God and my country….” The Oath does not say that you have a duty; it just says that, if some OTHER source demonstrates that you have a duty, you will strive to fulfill it. But if the other source demonstrates that you have a duty, what does the Oath add?)
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