Back to Prindle Institute

Trump, Berlusconi, and Double Standards on Tough Questions

two photographs: 1 of Donald Trump and the other of Silvio Berlusconi speaking at podiums

Since the election of Donald Trump, political experts have launched themselves into a comparison with his Italian version: Silvio Berlusconi. From his billionaire status to his physical height, the similarities between the two have been carefully examined in the hopes that the US could learn from Italy what to expect from the Trump administration. The comparisons made sense: Berlusconi and Trump indeed share many common traits. Their treatment of women and people of color, their financial privilege, their troubles with the law, their approach to tax evasion (as something to be flaunted instead of ashamed of), and their dismissal of journalism. Yet perhaps because the Trump administration created issues that a comparison with Berlusconi could not have helped solve, the similarities fell into silence. Until now.

On Thursday, just hours before his presidential debate with Joe Biden in Nashville, Trump released footage from his interview on CBS’s “60 minutes.” The video showed the president abruptly leaving the interview, calling the correspondent’s approach “no way to talk.” The interviewer, Lesley Stahl, is shown doing the job that a journalist should be doing, and doing it well: she asked challenging questions, questions that any politician would prefer not to answer, and she asked persistently, leaving no room for presidential monologues. The comparison with Berlusconi is unavoidable. In 2006, while Berlusconi was Presidente del Consiglio (the Italian version of Prime Minister), he was invited to be interviewed in “In Mezz’Ora” (“In Half an Hour”), a show conducted by the journalist Lucia Annunziata. Known for her professional and serious temperament, Annunziata kept asking pressing questions to Berlusconi, who eventually decided to leave the interview halfway through. While shaking her hand, Berlusconi scolded Annunziata for her “unfair treatment,” hinting at her alleged leftist bias. The similarities with Trump are particularly striking. Both time-constrained interviews (60 minutes in Trump’s case and 30 minutes in Berlusconi’s case) feature women interviewers relentlessly pressing for an answer that is concise and to the point.

Trump and Berlusconi’s reaction to their interviews also share similarities. In both, they complain about having been unfairly treated, hinting at the seemingly aggressive temperament of the interviewer who did not give them the opportunity to respond. In truth, both interviewers did give them time to reply, but not in the way Trump and Berlusconi are perhaps used to: by responding with overly long speeches about their achievements and ultimately avoiding the question.

What should we make of this comparison? I think the lesson to draw here is a double standard: both Trump and Berlusconi have a hard time maintaining poise in challenging interviews. Granted, interviews can feel like a difficult battle, a back-and-forth that hardly leaves time to breathe, but that rhythm is exactly what is so particular to journalistic style. Interviews are not – and should not – provide a sympathetic atmosphere where candidates can let themselves indulge in long responses that tout the importance of their qualities. Rather, they are a moment of scrutiny where one’s articulate responses are tested. Both Trump and Berlusconi fail the test: they show that they do not know how to deal with journalists (a remark Annunziata makes when leaving the show after Berlusconi storms out). This kind of behavior also hints at the inability to take one’s own medicine.

In the first debate with Joe Biden, Trump relentlessly interrupted the former vice president, often talking over him, and was repeatedly scolded by Chris Wallace, the moderator. If that is an acceptable way of interacting during a debate, then it should be so when other interviewers occasionally interrupt him to obtain a clear answer. Yet, to Trump it isn’t. Right before leaving his interview, Trump chastised Stahl’s approach as “no way to talk.” Notice the double standard here: it is no way to talk when such behavior is directed at him, yet it is acceptable when directed at others. The double standard brings to the surface a somewhat incoherent behavior. And this incoherence is more of a logical problem, rather than a political one. A double standard is not a formal fallacy, that is, a poorly construed argument, but it highlights an inconsistency between words and actions. Trump’s behavior towards Biden during the first debate paints a relentless exchange, yet his verbal remarks about Stahl’s approach toward him tell a different story: they lead to the conclusion that Trump will not endure such tough treatment.

Do we have an obligation to being consistent? Deeming a practice as wrong and nevertheless performing it might make one vulnerable to charges of moral hypocrisy. While it might be difficult to be consistent, our politicians should strive to meet this challenge. Avoiding special treatment and refusing a double standard sends a positive message: one that embraces reciprocal treatment and suggests that those who represent us are not above us.

The Day after Election: Democracy and Good Faith

photograph of downtown Washington D.C. with Capitol building in background

Much attention and energy is focused on the outcome of the election, but regardless who wins there is a great deal of work to be done — simply declaring one side the victor won’t solve our problems. So what’s the next question we should be asking after “Who won?”

In a recent podcast discussing the state of the American democracy, David Runciman remarked:

“The optimistic view is that democracy is a resilient and flexible form of politics… but there’s a deeper fear – which is that something has changed, something over these last three and a half years; [that the Trump presidency] has left not just a stain but a kind of permanent imprint on how people think about the institutions the values and the norms [of American democracy].”

America, and the world, will know soon if Trump gets in for a second term. There has been much talk over the past four years about how much damage Donald Trump could do, is doing, and has done to American democracy, and much discussion about the ongoing effects of the stress the Trump presidency has had on the institutions of American democracy.

If Trump loses, it isn’t yet clear how the institutions of American democracy will emerge from the crisis of his presidency. If Trump is returned to office, no one knows what the state of American democracy will be after four more years, but the prognosis would not be good.

When people talk about the ‘institutions of democracy’ they usually mean the balance between legislative and executive power, the checks and balances Congress is supposed to provide, as well as the role of an independent judiciary and a free press. The last four years, compounded by fears that Trump may refuse to concede a lost election, have demonstrated many weaknesses and vulnerabilities in all these areas. But there is another important democratic ‘institution’ rarely mentioned yet vital for a healthy and functional democracy – that of good faith.

When Utah senator Mike Lee said recently that “democracy isn’t the objective” of America’s political system, he confirmed the suspicions of many in appearing to speak out loud the agenda and tactics of the Republican Party. Other Republican figures, including the president, are on record admitting that without voter suppression tactics the Republican party could not retain, or likely ever again attain, the power of the presidency or of Congress.

Good faith means that all sides of politics respect and uphold the central principle of democracy as a system of government formed by and of and for the people. Citizen participation is needed for this. A high degree of trust is needed. For there to be trust in politicians they must be trustworthy. If you trust someone who lies and cheats, that doesn’t make you a trusting person, it makes you gullible. So there has to be the right kind of trust, which is reciprocal and earned and not misplaced.

Good faith, necessary for democracy to function, is derived from the institution itself: from respect for and deference to true democratic principles by those empowered to discharge its duties. Good faith is attached to the principle of fairness, and it is lost when the desire to win at any cost takes hold.

Erosion of good faith between political parties, where there is no recognition of a common good, only the good for one side or another, has been poisoning American democracy since before Trump descended the escalator at Trump Tower to announce his candidacy. So, while it is tempting to think of this election as centrally a test of whether the American democracy can withstand authoritarianism of whether the world’s oldest and longest surviving democracy can withstand the stress test of Donald Trump it would be incorrect to think the era of bad faith began with him, even if he is the unsurpassed master of its theatrics.

Much has been made over the last four years about the Republican Party in general, and particular key figures such as Mitch McConnell, as enabling Trump – but Sarah Churchwell makes the point that the failure of McConnell et al to reign Trump in has enabled the ideological right. Trump has been utilized by the Republican Party to pursue its arch-conservative and patently antidemocratic agenda.

Heading into the election Trump has not only helped advance the conservative ideologue’s antidemocratic agenda, but taken it to a whole new level. As Sabeel Rahman (president of the thinktank Demos) says: “A set of actors in the Trump administration and the Republican party have made it very clear that their intention is to hold on to political power at the expense of democratic institutions.” This was spelled out (although incorrectly) by Mike Lee: “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

It has been clear leading into this election that voter suppression and intimidation is the Republican plan for winning the election. Added to this is the widespread fear that Trump won’t concede, and the uncertainty about what will happen next. Judith Butler tells David Runciman: “…I think if Trump is successful in his efforts to contest, litigate, or otherwise cling on to power, then he is there unless the government is able to act and remove him.”  At this stage, as the election looms, we don’t know how such a scenario would play out.

Democracy and the institutions and democratic norms it relies on has, at best, always been a slow dance towards a better, more inclusive, more progressive, and more just iteration of a political ideal where the views and interests and of the people are represented through various means of direct and indirect choice. The lack of good faith now at the heart of the system has severely impeded this goal. It seems that all but a few, now-powerless members of the GOP are willing to sacrifice good faith for power – and, whatever happens next week, the American democracy cannot heal without some restoration of those vital democratic institutions of trust and good faith.

The Day after Election: Procedure and Substance

photograph of US Capitol building at dawn

Much attention and energy is focused on the outcome of the election, but regardless who wins there is a great deal of work to be done — simply declaring one side the victor won’t solve our problems. So what’s the next question we should be asking after “Who won?”

No matter who wins the upcoming election, the elected administration will face questions of priority, what policies should be focused on. Should we focus on COVID or global warming? Should we pass election reform or healthcare reform? Should we deregulate now or first ensure protections for religious liberty?

These questions are always difficult. You need to weigh the ends at stake, your likelihood of success, how immediate the concern is, etc. In this post, though, I want to focus on one particularly tricky question of priority. Should one prioritize the substantive ends of government, or the procedural ends of democracy? Is a government’s first obligation to ensure those internal structures which maintain its democratic legitimacy, or is it right to prioritize lives saved over merely procedural and political rights?

To get at the distinction I’m drawing, it might be useful to think about the substantive policies as policies that any government ought to pursue. Thus whether you are a constitutional monarchy, a democratic republic, an Athenian city-state, or a theocratic oligarchy, you are obligated to promote the common good. The Holy Roman Empire in the 14th century had precisely the same kind of reason to halt the spread of the Black Death that Germany has to halt the spread of COVID today. In contrast, the procedural policies are those policies tied to the internal structure of democratic governance. These include things like ensuring fair representation (perhaps by making Washington D.C. a state) or access to democratic participation (perhaps by passing federal regulations to fight state-level voter suppression).

Now, there are two different questions of priority we need to consider. First, there is priority of sequence: what do we need to do first? Second, there is priority of importance: if we can only do one of these two things, which should we do?

Just because one thing is more important than the other, that does not mean that you should always do the most important one first.  Sometimes finishing my work is more important than sleep. A handful of times while in undergrad I faced the question of whether I would sleep or finish my paper. When faced with that choice, I would pull an all-nighter. Finishing the paper on time had greater importance-priority than getting one more night’s sleep. All the same, if I expect I can do both, sometimes it makes more sense to do the less important one first. If I will have time to sleep and write, I’ll often go to bed and finish writing refreshed the next morning. Sleep has greater sequence-priority because getting a good night’s sleep will actually help me write the paper.

So when we look at the sequencing question, what should we prioritize? The first thing to note is that certain kinds of democratic reform might be prerequisite to passing substantive policies. Ezra Klein, for example, has recently argued that unless democrats eliminate the filibuster a Biden administration will be unable to pass much meaningful policy. Similarly, perhaps you need to find some way to decrease the power of lobbyists before you will be able to corral enough senators to vote against special interests. On the other side, other democratic reforms might take a back seat to COVID relief. It will be two years until another election, so perhaps deal with the current crises and tackle election reform six months in.

The more interesting questions of priority, however, concern importance-priority. Suppose an administration could either enact healthcare reform or electoral reform, which should it opt for? This is a tricky question because it is not that clear how to compare these substantive and procedural goods.

You might try to sidestep the comparison. Maybe there is no trade-off because electoral reform will lead, in the long run, to the best substantive reform! For instance, perhaps you think that by making Washington D.C. and Puerto Rico states will help ensure future democratic control over the Senate and so, because you think democratic policies are better, prioritizing electoral reform will actually improve substantive policies in the long-run. Of course, there is something distasteful about adopting electoral reform to help your specifically preferred policy. After all, that could equally justify electoral deforming if you thought being less democratic would result in better policies in the long run. There are plenty of reasons, though, for thinking that democracies make better decisions in general. And reasons of that sort might justify giving long-term democratic reform importance-priority even over pressing substantive goals. This tends to be why I think, at least right now, the priority should be on democratic reform. Just as it is important to keep your own body in good shape, even if your goal is to be able to go and help others. So it is imperative for the government to keep its own internal deliberative form in good shape that it might be rightly accountable to the people.

But suppose, just for the sake of argument, that there really is a trade-off. Suppose we really do face the question of if we should choose a more democratic society in which people are by objective measures worse off, or a less democratic society where people are happier and more secure. In that situation, what should we choose?

One view, which I do find plausible, is that democratic goods are actually only instrumental goods. Democracy is a better form of government because democracies better secure the common good. As such, if you really do face a trade-off between democratic goods and the common good you should prioritize the common good. I’m sympathetic to this view, but it does require you to defend the counter-intuitive position that democracy has no value in itself — something I cannot possibly defend here in this post.

On the flip side you might think that democratic goods have a lexical priority over substantive goods. Because democracy is the source of a government’s legitimacy it must always prioritize that democratic structure. The problem with this view, however, is that it leads to a ‘resource black hole.’ It is probably always the case that you could make slight improvements to democratic access. So if any democratic reform takes priority over any substantive reform, then you would never get to the substance of government!

The third option, of course, is somewhere in the middle. Perhaps both of these are important, and major democratic reforms should take precedence over minor substantive reforms, just as major substantive reforms should take precedence over minor democratic ones. The problem, however, is one of incommensurability. What scale are we using when we assess what a ‘large’ democratic reform is in comparison to a ‘large’ substantive reform?

Fascinating work in behavioral economics actually helps us understand how these comparisons are made. It turns out our brains are very good at what we can call ‘intensity matching’. Take an example of Daniel Kahneman’s: if I tell you that “Julie read fluently when she was four years old” and then ask you “how tall is a man who is as tall as Julie was precocious?” You will probably give me a number at the high end of the 6-7 foot range. Most people do.

Of course, there is no meaningful question we are answering here. There is no deep sense in which a certain level of precociousness actually maps to a certain height. Rather we have a general sense for how extraordinary something is. But that sense of extraordinariness is scale-dependent. If one person’s scale of democratic norms starts with chattel slavery, and the other starts with voter I.D. laws, then we will get very different answers for what level of democratic failure corresponds to one hundred thousand deaths from COVID.

We feel confident in trading off democratic and substantive values, but it seems like we feel comfortable with those tradeoffs because we rely on a dubious form of intensity matching, rather than actually tracking something of real moral import.

Once you recognize how contingent our ‘intensity matching’ is, it really makes you pause and wonder just how do we go about comparing incommensurable values? What does it really mean when I say that mask mandates are a minor violation of liberty, one commensurate with public health crises, but that mandatory vaccinations are not? Sure, I intuitively feel that forcing someone to inject something into themselves is a far worse violation of autonomy, but is there anything philosophically real underlying the intuitive scale by which I compare that to public health threats? I don’t think there is.

So if you take the third view, a view on which you need to balance democratic and substantive norms, I think that means you’re just kind of stuck. It is unclear how we can possibly give a principled way to compare one priority to the other because those priorities are, in a very real sense, philosophically incommensurable. This, indeed, seems fundamental to what democracy is. Part of the miracle of democracy is that it provides us a way to collectively compromise on which of our incommensurable values we will prioritize and when. But if that is part of the miracle of democracy, part of the strangeness of democracy is that our prioritization of that miracle is itself something we sometimes need to compromise.

Truth and Contradiction, Knowledge and Belief, and Trump

photograph of Halloween event at White House with Donald and Melania Trump

At a White House press conference in August, the HuffPost’s White House correspondent, S.V. Dáte, was called on by President Donald Trump for a question. This was the first time Trump had called on Dáte, and the question the reporter asked was the one he had (he said later) been saving for a long time. Here is the exchange:

Dáte: “Mr President, after three and a half years, do you regret at all, all the lying you have done to the American People?” Trump: “All the what?” Dáte: “All the lying, all the dishonesties…” Trump: “That who has done?” Dáte: “You have done…”

Trump cuts him off, ignoring the question, and calls on someone else. The press conference continues, as though nothing has happened. Trump’s reaction to being challenged is familiar and formulaic: he responds by ignoring or denouncing those from whence the challenge comes. In a presidency as tempestuous as this one, that inflicts new wounds on the American democracy daily and lurches from madness to scandal at breakneck speed, this reporter’s question may have slipped under the radar for many.

But let’s go back there for a moment. Not only was it a fair question, it is a wonder that it is not a question Trump is asked every day. The daily litany of lies uttered by the president is shocking, though people who support Trump seem not to mind the lies, or at least are not persuaded thereby to withdraw their support. This seems extraordinary, but maybe it isn’t. As politics continues to grow more divisive and ideologically driven, versions of events, indeed versions of reality, which serve ideologies are increasingly preferred by those with vested interests over ones supported by facts.

Therefore, the answer to Dáte’s question was already implicit in its having to be asked. Given the sheer volume of lies, and given what we know of Trump’s demeanor, it seems clear that he harbors no such regret. Trump gave his answer in dismissing the question.

So, here we are then. The President of the United States is widely acknowledged as a frequent and mendacious liar. If you want to follow up on the amount, content, or modality (Fox News, Twitter, a rally etc.) of Trump’s lies, there are the fact checkers. The Washington Post’s President Trump lie tally database had clocked 20,055 lies to date on July 9. You can search the database of Trump lies by topic and by source. The Post finds that Trump has made an average of 23 false or misleading claims a day over a 14-month period.

Take the president’s appearance last month at an ABC Town Hall with undecided voters. In response to questions about his handling of the pandemic, and regarding the taped, on-the-record interviews with Bob Woodward in which Trump discusses his decision to play down the virus to avoid panic, Trump responds that he had in fact “up-played” the virus. He says this while making no attempt to square the lie off with what is already, in fact, on the public record. As with all Trump’s tweets, public speeches, rallies, press conferences etc., Trump tells lies and fact checkers scramble to confront them.

Of course, Trump should be fact-checked. Fact-checking politicians and other public figures for the veracity of their speech is, and will remain, a vital contribution to public and political discourse. However, it is also important to reflect upon the way the ground has shifted under this activity in the era of Trump; the post-truth era.

The activity of fact-checking, of weighing the President’s claims against known or discoverable truth, presupposes an epistemic relation to the world in which truth and fact are arbiters of – or at least in some way related to – what it is reasonable to believe. Truth and untruth (that is, facts and lies) are, in the conventional sense, at odds with one another – they are mutually exclusive. A logical law of non-contradiction broadly governs conventional discourse. Either “p” or “not-p” is the case; it cannot be both. Ordinarily for a lie to be effective it has to obfuscate or replace the truth. If “p” is in fact true, then the assertion of “not-p” would have to displace the belief in “p” for the lie to work.

But in the Trump Era (the post-truth era) this relation is no longer operative. Trump’s lies often don’t even maintain the pretense of competing with truth in the conventional sense – that is, they don’t really attempt to supersede a fact but rather to shift the reality in which that fact operates as such, or in which it has a claim on belief, decision, and action.

When Trump says he “up-played” the virus without addressing his own on-the-record admission that he downplayed it, he is of course contradicting himself, but more than that he is jettisoning the ordinary sense in which fact and falsehood are at odds with each other. This could be described as a kind of epistemic shift, and is related, I think, to any meaning we might make – now and in the future– of the concept of ‘post-truth’, and what that means for our political and social lives. The concept of post-truth appears to signal a shift in what people can, within political and social discourse, understand knowledge to be, and what claims they can understand it to have upon them. The consequences of this we can already see playing out – especially, for instance, in the pandemic situation in the US, together with the volatile election atmosphere.

Having a concept of epistemology is important here – a concept of what it would be to ‘know’ and what it would be to act on the basis of knowledge. Such a concept would have to demarcate an ancient philosophical distinction – between episteme and doxa; which is the distinction between knowledge and mere opinion or belief.

Post-truth is the ascension of doxa over episteme. In the well-known philosophical analysis of knowledge as justified true belief, for a belief to count as knowledge one must be justified in believing it and it must be true. Knowledge, under this definition which is rudimentary, and somewhat problematic, but nevertheless useful, is belief which is justified and true. But in the post-truth era it seems that the conditions of both justification and truth are weakened, if not dispensed with altogether, and so we are left with an epistemology in which belief alone can count as knowledge – which is no epistemology at all.

It is easy to see why this is not only an epistemic problem, but a moral and political one as well. What knowledge we have, and what it is reasonable to believe and act upon, are core foundations of our lives in a society. There is an important relationship between epistemology and an ethical, flourishing, social and political life. Totalitarianism is built on and enabled by lies and propaganda replaces discourse when all criticism is silenced.

The coronavirus pandemic has been disastrous for the US. A case can easily be made that the pandemic has been able to wreak such devastation because of Trump’s lies – from his decision to downplay the danger and his efforts to sideline and silence experts, to the specific lies and obfuscations he issues via Twitter and at press conferences or Fox News call-ins.

The US has recorded the highest number of infections, and deaths, of anywhere in the world. So, when Trump says “America is doing great” the question must be ‘what this could possibly mean?’ This is no casual lie; nor is it merely the egoistic paroxysm of a president unable to admit error. Repeating at every possible opportunity that ‘America is doing great, the best in the world’ It is a form of gaslighting – and as such is calculated to help Trump disempower and dominate America.

This is in itself quite unsettling, but where is it all going?

In another, particularly bizarre and sinister example of ‘Trumpspeak’ from a couple of weeks ago the president mentioned a plane that allegedly flew from an unnamed city to Washington, D.C., loaded with “thugs wearing these dark uniforms, black uniforms, with gear.” In the absence of any ensuing clarity from the president or anyone else on what this might have been about, and in the light of Trump’s oft-repeated claims of the presence of a ‘radical left’ contingent, of ‘antifa’ and ‘radical democrats’ etc., it seems to have been an intimation of some threat, directly or indirectly, the symbolism of which appeared to be drawn from the ‘law and order’ platform of his campaign. Frankly, it’s hard to say.

But vague lies and unverified claims with dark intimations are the stuff of conspiracy. If you line all that up next to the fact that Trump has generously hinted that if the election does not resolve in his favor, he will consider the result illegitimate, then you can see how the lies, the false stories, the obfuscations and intimations are the tools Trump is using to try to shift power. He is trying to dislodge power from the elite – which can be read as ‘people who know things.’

One way of characterizing the situation is to say that the post-truth situation is creating an epistemic vacuum where ideology trumps reality and it is in this vacuum that Trump will attempt to secure his win.

Take the oft-repeated mail-in ballot lie – that mail-in ballots are subject to widespread electoral fraud. This has been firmly refuted, even by Trump’s own investigation following the 2016 election. Yet it is widely recognized that this lie could foment a sense of resentment among Trump supporters should he not get across the line on November 3. Or it could facilitate his (by now fairly transparent) intention to declare victory on election night should the result be inconclusive as counting proceeds. These are the possible, or even likely, outcomes if Trump is able to create, feed, and capitalize on a situation in which truth and fact have no purchase on, or have no meaningful relationship to, people’s reasons for acting or making choices.

Trump’s lying is both a symptom, and part of the disease of his presidency – a pathology which has infected pretty well the whole Republican party and which is putting great strain on many of the organs and tissues of the American democracy. This really is a time like no other in America’s history, and the stakes are as high as they have ever been.

At this point the ethical dimensions of the question of why truth is important to a healthy and just society seem to be slipping from view as America struggles under Trump to keep an epistemic foundation in political discourse that is broadly governed by principles of veracity. Fact-checking alone cannot win that struggle.

In Defense of Mill

collage of colorful speech bubbles

In recent years, commentators — particularly those who lean left — have become increasingly dubious about John Stuart Mill’s famous defense of an absolutist position on free speech. Last week, for instance, The New York Times published a long piece by Yale Law School professor Emily Bazelon in which she echoes a now-popular complaint about Mill: that his arguments are fundamentally over-optimistic about the likelihood that the better argument will win the day, or that “good ideas win.” In this column, I will argue that this complaint rests on a mistaken view of Mill.

Mill’s argument, briefly stated, is that no matter whether a given belief is true, false, or partly true, its assertion will be useful for discovering truth and maintaining knowledge of the truth, and therefore it should not be suppressed. True beliefs are usually suppressed because they are believed to be either false or harmful, but according to Mill, to suppress a belief on these grounds is to imply that one’s grasp of the truth or of what is harmful is infallible. Mill, an empiricist, believed that no human being has infallible access to the truth. Even if the belief is actually false, its assertion can generate debate, which will lead to greater understanding and ensure that truths do not lapse into “mere dogma.” Finally, if the belief is partially true, it should not be suppressed because it can be indispensable to discovering the “whole” truth.

Notice that Mill’s whole argument concerns the assertion of beliefs, or the communication of what the speaker genuinely takes to be true. The key assumption in Mill’s argument is thus not that the truth will win out in the rough and tumble of debate. This may well be true — at least, it may be true in the long run, when every participant is really engaging in debate, or the evaluation of truth claims. Rather, Mill is taking as given that a lot of the public discourse is aimed at communicating truth claims in good faith. The problem is that much of this discourse is not intended to inform others about what speakers actually believe. Much of the public discourse is propaganda — speech aimed at achieving some political outcome, rather than at communicating belief. As Bazelon points out, referring to the deluge of disinformation that currently swamps our national public conversation,

“The conspiracy theories, the lies, the distortions, the overwhelming amount of information, the anger encoded in it — these all serve to create chaos and confusion and make people, even nonpartisans, exhausted, skeptical and cynical about politics. The spewing of falsehoods isn’t meant to win any battle of ideas. Its goal is to prevent the actual battle from being fought, by causing us to simply give up.”

The purpose of disinformation propaganda is to overwhelm people with contradictory claims and ultimately to encourage their retreat into apolitical cynicism. Even where propagandists appear to be in the business of putting forward truth claims, this is always in bad faith: propagandists aren’t trying to express truth claims. 

Where does this leave Mill? Mill may have been mistaken in overlooking the pervasiveness of propaganda. However, his defense of free speech need not extend to propaganda. If Mill is concerned only with defending communicative acts that are aimed at expressing belief, then we have no reason to think that Mill needs to defend propaganda. Thus, a Millian defense of speech can distinguish between speech that is intended primarily to express a truth claim and speech that is intended primarily to effect some political outcome. While the former must be protected from suppression, the latter need not be, precisely because the latter is not aimed at, nor likely to produce, greater understanding.

Of course, this distinction might be difficult to draw in practice. Nevertheless, new policies recently rolled out by social media platforms appear to be aimed precisely at suppressing the spread of harmful propaganda. Twitter banned political ads a year ago, and last month Facebook restricted its Messenger app by preventing mass forwarding of private messages. Facebook’s Project P (P for propaganda) was an internal effort after the 2016 election to take down pages that spread Russian disinformation. Bazelon recommends pressuring social media platforms into changing their algorithms or identifying disinformation “super spreaders” and slowing the virality of their posts. Free speech absolutists might decry such measures as contrary to John Stuart Mill’s vision, but I have suggested that this might be a mistake.

Is Microtargeting Good for Democracy?

photograph of "protecting america's seniors" sign next to podium with presidential seal

“Suburban women, would you please like me? Please. Please.” This was Donald Trump’s messaging at a campaign event this month. While there are many striking things about a statement like this, what particularly struck me is how transparent Trump is about trying to appeal to specific voting demographics rather than to women, voters, or Americans at large. This is not new of course, political campaigns have spent decades trying to find the specific target voters they need to win, but what was once the terminology of campaign logistics and pundits has become public campaign rhetoric. A campaign is able to identify and target voters through a process called microtargeting. But what is it and does it make democratic politics better or worse?

Let’s say that you enjoy a certain television program. What you may not realize is that there may be a significant correlation between your viewing habits relative to others and how you may vote. As a result, when that program goes to commercial, you may be bombarded with political advertising for a certain candidate. This actually happened in 2016. The Trump campaign determined that people who watched The Walking Dead were more likely to have specific views on immigration and as a result, Trump advertising on immigration was aired during the program. This is microtargeting, and through careful statistical analyses of large amounts of data, political campaigns can find and try to reach specific voters in order to improve their chances of winning.

Microtargeting involves the use of a large pool of data that tracks potentially thousands of variables about a person in order to determine the political messaging that you will best respond to. How this data is collected is a matter of controversy. Some of this data can be limited in scope to matters like what precinct you live in, whether you voted in previous elections, etc. Other times, the data can be much more specific including viewing habits, social media habits, personal details, and more. By using various algorithms in data analysis, a company or campaign can target you with online and television advertising, door-knocking, and even mailed literature. You may get different advertisements for a candidate than your neighbor gets for the same candidate because of this.

The issue carries a whole host of ethical problems and concerns. For example, the Facebook-Analytica scandal involved the consulting firm Cambridge Analytica providing such services using data collected from Facebook without permission from users. How this data is collected and who can access it are major concerns for those who worry about privacy. However, for my purposes I will focus on the ethical concerns that microtargeting raises as it pertains to democracy and the democratic process.

Proponents of microtargeting argue that this is just a more effective means for a campaign to reach out to potential voters. The Obama campaign made great use of microtargeting techniques in order to mobilize young people, Latinos, and single women in key swing states. Traditional forms of advertising can leave certain voters out if advertising is based only on factors like geography or party registration. This also means that advertising can be more efficient as there is no longer a heavy reliance on wide-run television advertising.

Being able to recognize people who may support a candidate and then figuring out what exactly will motivate them to vote isn’t a bad thing. Nor is it necessarily a bad thing that political parties learn more about who their voters are and what kinds of things they care about. This may reveal more about what voters care about than what is typically captured by opinion polling, media coverage, and focus groups. Such tools could be effective at identifying and perhaps re-engaging those who have dropped out or are otherwise ignored in the larger democratic conversations that take place during an election year. Likewise, it is not necessarily a bad thing for a voter to get the kind of advertising that they may wish to see.

On the other hand, microtargeting can be harmful to democracy in several ways. Microtargeting seeks to identify issues important to you and to feed you advertising that will motivate you to vote. However, democracy should not just be a matter of appealing to the often subjective and idiosyncratic views you already have. Election campaigns are not a mere matter of logistics, they are a national conversation. Microtargeting enables and encourages narcissistic voters.

Voters should be aware of the larger democratic conversation taking place at an election time and they may not understand these issues if they are only receiving targeted advertising that only focuses on narrow issues in a narrow way. If gun rights or the environment are the most important issue to you in an election, that’s great; but you should be aware of how those issues affect others and what other issues may require the attention of the public.

Another significant problem lies in the irony of microtargeting; it narrows the focus to the individual while simultaneously lumping that individual into specific segmented target groups based on correlations of certain variables in other groups. Each target group has its own interests, motivations, and desires (and fears), and campaigns are then free to exploit these as they see fit. This makes it easier to create conflict between these groups, as there is evidence that microtargeting can contribute to polarization. It means that politicians focus more on voting blocks and less on the public at large, hence why even presidential candidates now speak directly to voting blocks. It also means that a campaign doesn’t have to focus as much on a single consistent message, making it easier to tell different things to different target groups. Political parties choose their voters rather than the reverse. And it isn’t only politicians. The media coverage of the election spends an unhealthy time obsessed with which target group will support who, or how demographics in certain districts have changed over time. The election becomes about the process of the electioneering rather than about policy, character, or other issues of public importance.

Even more disturbing is that these correlations between variables may signify nothing rather than being a predictor of political preference. Models may build incorrect profiles of the groups they are targeting. Indeed, some have posited that this is little more than snake oil posing as science. The advertisements are also less accountable. These are targeted ads rather than ones that will be seen by the public at large. They are often shared on Facebook and social media and can often contain misinformation. All of this can serve to undermine political trust and transparency.

There are great benefits that microtargeting can have for democracy. It could be used as part of a massive campaign to encourage voter registration and voting. Experts will often suggest that it is neither good nor bad, but it is only how it is used that is ethically relevant. However, the larger concern is that we do not understand the effects of the use of the technology yet to know in what ways that it can be used for good or bad. Thus, while banning its use may not be wise, limiting its use in politics seems wise, at least until we learn whether it can function as a tool for the improvement of democracy.

Medical Privacy and the Public’s Right to Know

photograph of President Trump with face mask giving thimbs up from within SUV

When I first heard that President Donald Trump tested positive for COVID, I began following the regular updates about his condition. I read through the updates from his doctor, I checked the dates on his previous COVID tests to determine when he was probably infected, I cross-referenced the results of his medical tests with what actuarial data exists for COVID cases, and I regularly checked in to see if President Trump’s condition was improving or worsening.

Or, more precisely, those were all things I wanted to do. Why didn’t I do them? Because the White House did not release detailed medical information. We got some minimal updates about the president’s conditions, but those updates were devoid of specifics and often inconsistent.  This bothered me, and I immediately added this to the tally of ways the Trump administration has been insufficiently transparent.

I was upset with the White House, I felt they were doing something wrong by not being more transparent. I felt like I had a right to know about my president’s health condition! Not only that, I felt I had a right to know about the health condition of a current presidential candidate less than a month from the election. I felt that President Trump, as both the sitting president and a presidential candidate, did something wrong by not releasing details of his condition to the public.

But is my feeling that the president had such an obligation of transparency correct? There is an extensive academic discussion of this very question. To what extent do candidates retain rights to medical privacy, and to what extent does the public gain a sort of moral right to medical transparency? That is the question I want to consider here.

Normally people do not have an obligation to disclose private medical information. That is true even if that information is materially significant to others. Certain illnesses could perhaps compromise my ability to teach at FSU — FSU thus has a real interest in knowing the results of my medical tests. That does not mean I have an obligation to send FSU that information. If I decide I can no longer do my job, then I should let FSU know and possibly I should resign. But if I think I can continue my work, FSU does not have some right to the same medical information so that they can make their own determination. My interest in medical privacy supersedes their interest in my medical history. FSU can fire me if the quality of my work suffers. But they don’t have a right to my medical information so that they can preemptively decide if they think my work will suffer.

Now, there are limits to our medical privacy. If diagnosed with HIV, one ought to disclose that diagnosis to prior sexual partners. Similarly, in cases of medical emergency, the state might need to violate medical privacy to prevent the spread of a highly infectious disease. Even in those cases, however, it is still reasonable to maintain as much privacy as possible. Following a COVID diagnosis, you might be justified in telling people I’ve been around that they may have been exposed to COVID-19. But that would not justify you telling others whether or not I was given supplemental oxygen.

So what explains my intuition that the president should release the details of his medical tests and treatment? It is something about the difference between me and the president. The first difference that comes to mind is how much more important the president’s work is. President Trump’s decisions are more influential. As such, perhaps there is a large enough public interest to override claims to privacy.

That explanation does not quite capture my moral intuitions though. I don’t just intuit that President Trump has an obligation of transparency, I also intuit that the President of Malta has an obligation of transparency to the people of Malta. I don’t, however, intuit that Jeff Bezos has an obligation of transparency, even though Jeff Bezos almost certainly has far more power and influence than the President of Malta.

So if President Trump has a special obligation of medical transparency, that must be because of his governmental role. It is not that President Trump is more powerful than I am, but that President Trump can act with the coercive force of law. Put another way, President Trump is actually two persons. He is the private person of Donald Trump and also the public person of the President of the United States. President Trump can act as a private person, such as when he gives his children Christmas presents or writes personal letters to friends. President Trump can also act as a public person, such as when he signs laws or writes letters to foreign dignitaries on behalf of the United States. Indeed, it is precisely my distinguishing these two persons that we can make sense of concepts like political corruption. An act is corrupt when a politician uses their public function for a private purpose.

And indeed, we do think that President Trump retains privacy interests over his personal letters in a way he does not over letters he writes as the head of state. So, perhaps in the private person of Donald Trump deciding to run for the President of the United States, he forfeits certain privacy interests due to the demands of public transparency that a democratic electorate have over the head of the executive. Perhaps because the government acts with the consent of the governed, informed consent implies the public has special rights to know.

This seems like the strongest case for why President Trump, unlike myself, might have special obligations of medical transparency. There is, however, a powerful argument against norms of medical transparency. One of the interests we have in medical confidentiality is that it encourages people to seek out healthcare. If I know my doctor will keep a, potentially damaging, diagnosis secret, then I am more likely to go to the doctor. Presidents are political creatures; they need to factor in public reactions to what they do. Thus, a politically savvy politician might well be unwilling to undergo certain medical tests if they know there is a norm of disclosure. And this might be especially concerning for someone in a position as important as the President of the United States. The medical ethicist George Annas has argued that in general “we should encourage our leaders to seek such help whenever they feel they need it, both for their own sakes and for ours, and protecting their medical privacy is essential if this is to happen.” If presidents were morally required to disclose consultations with a psychiatrist, then presidents will be much less likely to consult them. Having the ‘leader of the free world’ unwilling to consult with medical professionals, however, is a scary place to be. We don’t want a president refusing needed supplemental oxygen just because they fear the consequent political blowback. The best way we know to prevent that, however, is maintain strong norms of medical privacy.

It seems reasonable to think that one might forfeit a deontological right to medical privacy by running for president. But it also seems reasonable to think that there are independent reasons to maintain norms of medical privacy that go beyond merely personal rights.

 

Oh, and a quick postscript for those readers who have never watched The West Wing. It is a great show, and the third season largely deals with questions of medical privacy and the public’s right to know.

Under Discussion: Voting Best Interests and Democratic Legitimacy

image of hand placing checked ballot in ballot box

This piece concludes an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

Since the rise of democracies centuries ago, the concern over the rationality of the voting population has been a central one. Winston Churchill famously quipped, “Democracy is the worst form of government, except for all the others.” And recently, ethicists and political theorists have studied and analyzed the motivations behind voters who vote in ways that don’t align with what appears to be their best interests. (In the 2016 presidential election, the examples seemed particularly stark.) Jason and Cecilia Rochester, for example, are not alone in voting for Trump and then having their family feel the tragic effects of Trump’s trade policies. Yet still they voted for Trump, who was clear and adamant about his views on immigration and open about his xenophobia towards Mexicans. Farmers who voted for Trump ended up being harmed by his trade policies. In fact, they were the biggest business to suffer from his China trade deals.

But there are a handful of complications surrounding the common criticism that people often fail to vote in support of their best interests.

First, in attending to the resulting government that democracy produces, we can blur the differences between the various forms of government. In other words, if the principal value government is to produce a political system that reflects the “people’s best interests” (whatever we decide that is), then it isn’t clear that democracy would do a better job at this than the other structures. Democracy is often lauded as being more stable than governments that aren’t formed with the consent of the people; it is a platitude that power corrupts, after all. As 1991 Nobel Prize laureate Aung San Suu Kyi said of democracy, “Democracy is when the people keep a government in check.” But there are other mechanisms that might keep a government in check, and it’s possible that these alternative structures could have substantive standards for leaders resulting in a government that represents the interests of the people better than representative democracies at least for stretches of time, and at least better than some assessments of the US.

Second, in explaining why people vote against their best interests, it is difficult to assess others’ preference orderings. For example, if someone were to vote for a representative because they ran on trade principles that seemed right and just, but would have predictable negative effects on the voter’s family, community, and state, how would we characterize this vote? It aligns with their preferences, but perhaps not in their “best interests” if we conceive of these as their immediate economic considerations. To have a “right” outcome in mind when evaluating others’ voting choices inevitably reveals bias in how we think voters should make their decisions. Put more plainly, choosing against some conception of your best interests shouldn’t undermine the validity of your choice. And because the legitimacy of democratic authority rests in the consent of the governed and not in the outcome being a particular right answer, features of decision-making that undermine consent may be more concerning.

Say I’m deciding whether or not to go spelunking. There is a spelunking company that will take and train amateurs that I’m considering signing up with. There are the standard pros and cons of spelunking, including risk, cost, joy of discovery, endorphins resulting from exertion, becoming a member of the spelunking community, etc. These factors could not match up very well with my preferences and values in a variety of ways. It could shake out that spelunking would not be a great option for me, given my lack of focus and, to be honest, a bit of claustrophobia. This could sharply contrast with how my friend’s temperament relates to the pros and cons of spelunking, given that she is an adrenaline junky and enjoys exercise of any kind.

However, I decide to go spelunking anyways. It could be foolhardy of me, or perhaps even worthy of disdain, given the fact that I’m likely signing up for a rather bad time of it. But these aren’t criticisms that seem to target whether I’m consenting to take up the enterprise. What features of the case relate to that?

In most cases when a company takes an amateur into a risky situation, like spelunking, base-jumping, rock climbing etc., there is some sort of contract for one thing. In addition, there is usually some sort of required orientation, perhaps simply in order to sufficiently understand the contract. Underlying these features is the standard that you know what you’re getting into.

Many things could play a role in my decision to spelunk without knowing the pros and cons. I could simply not have done sufficient research to know how they line up with my preferences, or I could have been misled by the information misrepresented to me. But it would undermine the consent I am giving to go spelunking if I didn’t know what the basic pros and cons of spelunking were.

But the view that, if we were to deliberate, we would only do what is in our best interests is an overly idealized one. I could decide to spelunk with all the information, and people do things that are irrational, silly, and self-destructive with all the information. However, when we don’t understand the nature of our choices, the connection between our deliberation and the choice we make is undermined. The above example highlights how ignorance is one of the features that can undermine consent.

Because democracies ground their authority not in the result, but in the procedures of their functioning, the connection between the voters and the system is what is important. The danger in a democracy is not instances of people voting against their best interests, but whether they understood the stakes and what they were getting themselves into at the time. This locates concern for democratic legitimacy in misinformation and ignorance of voters.

There is good reason to attend to this concern, as evidence suggests ignorance is promoted by representative democracies and that misinformation has been on the rise in the past decades due to social media and digital communication. In particular, the degree of ignorance and misinformation in this election has created something like multiple realities that make decision-making difficult. For instance, consider the perspectives on the state of our economy.

There are many different views on the state of our economy, the role the president has had on the state of the economy, and the candidates plans for the future of the economy. Now, as in 2016, these perspectives play important roles in determining many voter’s decisions. In 2020, we add the economic fallout of the pandemic where we have experienced the worst unemployment rate since the Great Depression, the prediction that 1 in 5 small businesses will close if economic conditions don’t improve in the next six months, and over half of business that have shut down on Yelp say they will not be able to reopen.

It is worrying that such an important aspect of the functioning of our country, and a divisive feature of the candidates’ plans for our nation, can’t begin to be discussed with anything approaching common ground due to different characterizations of the state of our economy.

Ignorance about the reality of our economy is not something new. In 2011, a Harvard business professor and a behavioral economist surveyed Americans about their perspectives on wealth distribution in the US. It highlights the difference between the perception of people in the US from the reality of wealth distribution:

Thus, not only are we currently engaging in public discourse where different groups of people have streams of information that characterize the health of our economy differently, from a non-partisan perspective, we are starting from a skewed understanding of the distribution of wealth. This is reflected in the controversial characterization of socioeconomic class in a recent New York Times article categorizing a family of four making $400,000 as “middle class,” and Vice Presidential candidates engaging in a he-said, she-said about specific economic policies.

Starting from misinformed, misled, or otherwise ignorant positions is a significant threat to the procedures that are meant to grant government authority in democracies. The legitimacy of their power comes from the connection with the deliberation and voting choices of the people. While our votes often appear to conflict with our interests, their weight becomes meaningless if we don’t know what it is we’re endorsing.

Under Discussion: Is It Rational to Be an Ignorant Voter?

photograph of people in voting booths

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

If you’re an American and of voting age, and allowed to vote, should you vote in the upcoming election? The answer seems like an obvious “yes.” There is, however, a bit of a puzzle when it comes to voting, especially in elections in very large democracies like that in the US: you ought to vote, even though the chance of your single vote is almost certainly not going to make any difference overall. That’s not a comment on you, it’s just math: there are a whole lot of people voting, and so really your one vote is not going to make an appreciable difference in the outcome. And it’s not as though voting is an easy process: it takes time, is an inconvenience, and, depending on where you live and who you are, can sometimes be a pretty miserable experience overall. So given that your one vote won’t make any difference anyway, why bother putting up with all that hassle?

You’ve no doubt heard this kind of reasoning before, perhaps from people you suspect were trying to justify their laziness. Of course, we might think that one has other reasons to vote, beyond just the chance of making a difference to the outcome of the election. For instance, one might think that not voting sets a bad precedent, which could lead to lots of other people not voting; or, perhaps one thinks that, regardless of the potency of a single vote, it is nevertheless one’s duty – perhaps a moral duty, or a duty that one has in virtue of being a citizen of democratic country – to vote. We might think, then, that even if one has some practical reasons not to vote – one’s vote won’t make any difference and it’s a pain to have to go through the process – then these factors are outweighed by other obligations one has.

There has been a lot of discussion about whether it is, in fact, rational in this practical sense to vote, despite one’s vote likely making no difference in the outcome. Here are two reasons why voting might in fact still be rational, regardless of any kinds of duties we might think we have: first, one might argue that it is still important how much a candidate wins or loses by. This might be because one’s vote can show that there is support for a candidate even if they lose, or make the winner more legitimate if they win by a larger margin. It might also be rational to vote in terms of the overall expected benefits of doing so. Here’s the argument: consider an election in which the stakes are high, such that if candidate A wins then there will be a lot of good outcomes for you, your community, and the people you care about, while if candidate B wins it will be very bad for all those people, instead. In this case, even if your vote has only a tiny chance of making a real difference, that chance is worth it given the potential benefits if your candidate wins.

Consider now a related problem. It seems that we not only want people to vote, but we also want those voters to be informed: we want people to know things about the history of the candidates, their stances on important issues, their policies and proposals should they take office, etc. But now we also have something of a similar puzzle to the one we just considered: it seems like you should be a well-informed voter, but given how small of a chance your vote has of making a difference, it might not seem worth it to take the time to become well-informed. After all, just as there is a practical cost in voting, there is a practical cost that comes along with being well-informed: you need to keep up with the news (something that is mentally taxing enough these days without the help of it being an election cycle), sort the good information from the bad, and do research about those aforementioned policies and proposals. What’s worse, it seems like much more work to gain all that knowledge than it is to just go and vote.

So like the worries about whether it is rational to vote, we have here a related worry about whether it is rational to become a well-informed voter. Again, the problem is that the costs in becoming informed may seem to outweigh the benefits: why should I spend so much time reading the news, doing research, etc., when chances are my vote really won’t make a difference and so it doesn’t matter how well-informed I am anyway? Whether this is the way people think about the issue or not, the outcome is the same: the problem of voter ignorance is a problem, with people typically lacking even the most basic knowledge of how their government works. While people will often take the time to go out and vote, then, the amount of effort it takes to become well-informed may then be seen by some as just too much work.

Here again we might appeal to other kinds of obligations: again, one might think that the duties of a democratic citizen are not only that one ought to vote, but that one also ought to be informed about who one is voting for. Or we might think that it would be morally irresponsible to not be well-informed, given the potential consequences of voting for the worse candidate. However, it might be more difficult to convince voters to become better informed, given the practical costs of doing so. It’s also not clear who gets to decide who’s really “well-informed” and who isn’t: one might think that they know all they need to already, even while knowing very little. While it is easy to tell whether one has done everything they need to when it comes to obligations to vote (e.g. whether they have, in fact, voted) it can be much less clear whether one has fulfilled one’s duties to be well-informed.

Due to these problems, instead of trying to convince someone to change by appealing to their duties, it is perhaps better to simply lower the costs of becoming well-informed. Websites that consolidate information that is useful to voters could be a step towards a solution to the problem (for example, sites like BallotReady). This is not to say that democratic citizens do not still have an obligation to be well-informed; rather, it is important to recognize that not all duties are as motivating, or easy to tell whether one has fulfilled them. In these cases, the best thing to do is perhaps to just make it easier for those duties to be fulfilled.

Under Discussion: Democracy Demands More than Your Vote

photograph of protesters occupying Brookyln Bridge

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

It took roughly thirty minutes for people to start arguing about what to do once reports of Supreme Court Justice Ruth Bader Ginsburg’s death became public on the evening of September 18th. With fewer than two months left before Election Day, it was not immediately clear that Ginsburg’s replacement could — or should — be rushed through the confirmation process before November 3rd. And many were quick to say, in no uncertain terms, that they thought it inappropriate for the president to nominate another justice, given the political circumstances. Consider this tweet from author and producer Reza Aslan:

Nevertheless, it quickly became clear that partisan interests would indeed take center stage in the final weeks of the election cycle with (eventual nominee) Amy Coney Barrett’s name circulating as a likely contender for the seat even before Ginsburg’s body had been laid to rest. Despite public opinion polls indicating that a consistent majority of voters want the winner of the 2020 presidential election to nominate RBG’s replacement, President Trump and Senate Republicans have worked hard to pack up the Supreme Court before November, nonetheless.

And, despite Mr. Aslan’s September suggestion, nothing has been burned down.

While some protests, both in Washington and at the homes of several Senate leaders, have materialized, the dominant prescription to voice public opinion on the matter has pointed towards one place: the ballot box. In a manner reminiscent of former President Obama’s famous “Don’t boo; vote” call, politicians, pundits, and other media personalities have, with increasing fervor, exhorted the American people to get to the polls. And though it is hard to measure the impact of a “Souls to the Polls” event or a special reunion of Aaron Sorkin’s The West Wing, early calculations suggest that Americans are indeed voting in record-shattering numbers, with voter turnout in 2020 already matching 12% of total voter turnout in 2016.

Of course, for someone specifically interested in voicing their displeasure at the partisan abuse of the currently-vacant SCOTUS seat, pleas to vote in an election that won’t be decided (and whose winners won’t be installed) until well after Judge Barrett becomes Justice Barrett might seem beside the point. Furthermore, even if the timeline were different, the SCOTUS-motivated voter would be casting her ballot in support of a candidate who would also receive support from thousands of other voters and it’s far from clear that the entire group would be voting for exactly the same reasons. Politicians frequently aim to build coalitions of differently-motivated voters for precisely this reason: opinions vary, not only about answers to political questions, but about which questions are most important to ask in the first place. For all its virtues, the “one vote, one voice” mantra fails to account for the unavoidable homogenization of voter’s voices in support for a single candidate.

This is roughly why the French philosopher Jean-Paul Sartre called voting a “trap for fools” that prevents people from exercising their true power as citizens. Championing instead the formation of interest groups that can wield political power about the specific values around which they unify, Sartre saw voting as an institutional mechanism for “serializing” the citizenry into complacent powerlessness. According to Sartre:

“When I vote, I abdicate my power — that is, the possibility everyone has of joining others to form a sovereign group, which would have no need of representatives. By voting I confirm the fact that we, the voters, are always other than ourselves and that none of us can ever desert the seriality in favor of the group, except through intermediaries. For the serialized citizen, to vote is undoubtedly to give his support to a party. But it is even more to vote for voting…that is, to vote for the political institution that keeps us in a state of powerless serialization.”

By assimilating variable support for a panoply of initiatives and desires into the discrete affirmation of only a handful of individual politicians, Sartre saw representative-based voting as a flattening of a person’s public agency.

And, indeed, the drafters of the U.S. Constitution would seem to agree. Writing in the Federalist Papers, James Madison warned about the dangers of public sentiment forming “factions” that could ultimately overthrow the system he and his friends were constructing. To Madison, this was a problem for two reasons: firstly, populist forces could easily be swayed by the manipulative power of demagogues (a point Alexander Hamilton discusses at length in Federalist No. 68), and, secondly, voters could form factions — what Sartre would call “groups” — that would threaten the “various and unequal distribution of property” within the United States. In Federalist No. 10, Madison outlines a defense of what would become the Electoral College as a cooling mechanism that could prevent popular ideas from being quickly turned into federal policy, saying “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.” Indeed, Madison’s “republican remedy” looks strangely similar to Sartre’s “powerless serialization,” but whereas the former views it as a solution to a problem, Sartre sees it as a problem of its own.

But, for all their disagreements, I think that Madison and Sartre would nevertheless agree on at least one thing: the practice of voting is not the chief duty of a democratic citizen. When not plagued by manipulative efforts to suppress voter turnout, the standard electoral process is a relatively easy responsibility that takes — again, in ideal circumstances — only a short amount of time every few years. But Sartre ridiculed those who “have been persuaded that the only political act in my life consists of depositing my ballot in the box once every four years,” arguing instead that the life of the political agent is suffused with a constant responsibility to attend to, speak up about, and organize both supports and protests in service of public issues.

In a similar way, later in his life, Madison defended not only public education, but specifically for “the poorer classes to have the aid of the richer by a general tax on property” so that, among other things, the electorate would be both more informed and more equipped to engage in political life; indeed, to Madison, the operation of such “learned institutions” to enlighten the public is “the best security against crafty and dangerous encroachments on the public liberty.” So, for both Madison and Sartre, politics was not simply a matter of semi-annually marking a ballot, but required diligent, regular attention to important matters of public concern, educating oneself and others so as to bring about the overall best state of affairs.

To be clear: my point is not to cast doubt on the value of suffrage, but to recognize that whatever virtues (pragmatic or otherwise) it may hold, the general election does not exhaust the duties of a responsible citizen in a modern democracy. Protestors, educators, and other servants of civic welfare who care for justice to be understood and upheld are just as crucial for the vibrant operation of our republic as are poll workers and voters.

As Hamilton himself wrote in The Farmer Refuted, “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature.” Democratic citizens who take that identity seriously should exercise these human rights and responsibilities in ways that far exceed the always-soon-to-be-musty ballot box.

Under Discussion: Are Liberalism and Democracy Fundamentally at Odds?

photograph of wooden pins representing peoplewith majority in support and a handful opposed

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

“Liberal democracy” is a phrase so commonly trotted out in discussions of types of modern political regime that one could be forgiven for thinking that its components — liberalism and democracy — fit together hand in glove. Yet this is far from true. The U.S. Constitution represents an uneasy compromise between liberalism and democracy, and many of the thorniest political problems the U.S. has faced derive from the fundamental tension between them.

Liberalism is a political philosophy that makes the individual and her freedom the locus of value. According to liberalism, the basis of the state’s right to use coercive power is that such power is necessary to secure the freedom of the individual against the depredations of others, including the state itself. By contrast, the practice of democracy is undergirded by an ethical commitment to the principle of majority rule — the idea that the basis of the state’s moral right to use coercive power is the mandate of the majority of the people.

In a liberal democracy, then, we have two uses of state power that count as morally legitimate: to secure or enhance freedom, and to enact the will of the majority. But these two uses can sometimes point in different directions. On occasion the majority wishes to reduce freedom — usually, the freedom of a minority. For example, segregation in the U.S. South represented the will of the white majority imposing limitations upon the freedom of the African-American minority. In such circumstances, there is a clash between the idea that majority rule makes political power legitimate, and the idea that political power cannot legitimately be used to restrict freedom. The key question in such cases is whether freedom ought to triumph over majority rule or vice versa.

The Founding Fathers were liberals and democrats, which is why they created both democratic institutions and institutions to serve as bulwarks against the popular will. For example, for all practical purposes the Bill of Rights takes questions of fundamental individual liberty off the democratic agenda: there will be no vote on the right to free speech (thank God). Meanwhile, the judiciary acts as a counterweight against democratic majorities when, through their representatives, they enact legislation that undermines the rights enshrined in the Constitution.

Today, those on opposing sides of many of the most controversial issues in U.S. politics will invoke the two legitimate uses of political power to ground their positions in widely acknowledged political values. Consider two culture war issues, abortion and gay marriage. Liberals say that they find within the Constitution a guarantee of women’s freedom to choose and homosexuals’ freedom to marry. Thus, they argue that state legislatures cannot legitimately prohibit these activities, even if the majority of people in the states are against them. On the other hand, invoking the legitimacy of majority rule, conservatives urge that these issues ought to be brought up for a vote in each state. At the same time, liberals will also point to the majority of Americans who support legalized abortion in favor of their position, and conservatives will oppose gay marriage on the grounds that it impedes the free exercise of religion. It’s interesting to note that essentially the same arguments — freedom versus the will of the majority — were made by the advocates and opponents of desegregation in the 1950s and 1960s, or the radical Republicans and Southern Redeemers in the 1860s and 1870s. We will probably see the same pattern repeat itself in debates over transgender rights, drug legalization, and other issues in the coming years.

As my potted history suggests, the trend over the last sixty years has been toward greater freedom and less majority rule. The courts have interpreted the Constitution as a broad guarantor of individual rights, regardless of the people’s desire to abridge those rights. But this may be changing. With the U.S. Supreme Court becoming more conservative, we may see a rollback of Constitutional guarantees of certain individual rights. The trend of finding individual rights in the Constitution, and of continually broadening the scope of federal government protection for those rights, will be reversed. In effect, the courts will throw these issues back to the voters through their representatives in state legislatures.

Is this a welcome development? On the one hand, it will mean that many states will not recognize what many believe are important individual rights, such as the right to control one’s reproductive life through the use of safe abortion. On the other hand, it will mean that people will live as the majority of their co-citizens wish them to live, at least with respect to certain important choices in their lives. Democrats (of the small ‘d’ variety) might find in this reason to celebrate.

Indeed, the slide toward illiberal democracy appears to be a world-wide phenomenon. Illiberal democrats reject the liberals’ view that securing and enhancing freedom is a legitimate use of state power. Philosophically, they recognize only the legitimacy of majority rule, and they use democratic tools, such as referenda, to legitimate policies that strip minorities, political opponents, and ordinary citizens of their civil and political freedom.

But for all that liberalism and democracy can be at odds, the fusion of the two appears to be a relatively enduring and equitable model. Individual civil rights like free speech encourage more effective democratic deliberation and encourage participation in the political process. At the same time, insofar as liberalism is embraced by the majority, it is further legitimated by that very embrace.

Still, the potential for disharmony between the fundamental tenets of liberalism and democracy means that liberal democracies are never free of deep controversies that can tear at the social fabric. As we continue through this period of both internal and external instability, that potential is more likely to come to fruition as the will of the people becomes increasingly antagonistic toward the freedom of the individual.

Under Discussion: A Dearth of Democracy

photograph of huge crowd from above, many with arms raised

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

At what is arguably the most powerful level of our government, there is the least democracy. The words “government of the people, by the people, and for the people” rings largely hollow, when seen in the light of the possibilities of democracy. This observation is not countered by the pedantic point that the United States was not conceived of as a democracy, but instead as a republic. Even conceding this point, as a democracy of indirect representation the United States is not particularly democratic.

The federal government is more removed from the direct control of the people than are the governments of the various states. This is by design. Originally, the federal government was conceived of more as the forum in which the states themselves, rather than the citizens thereof, advocated for their interests. Members of the US Senate were chosen by the legislatures of the states they represented, rather than directly by the people of those states. The President of the United States was chosen by electors, which in most states were not selected by popular vote but by the legislature of that state. Moreover, the number of electors allocated to a given state was based on that state’s number of representatives in US Congress. Hence, all of the federal government, except the US House of Representatives, constituted an at least doubly-indirect democracy.

To demonstrate this point, it helps to spell-out different mechanisms of democracy. We’ll talk about two mechanisms of indirect democracy, and two of direct democracy. The first mechanism of indirect democracy is what most people in the US likely think of when they talk about a democratic process — election. To state the obvious, election is the mechanism by which we pick someone to act as our representative in some role. As we’ll see later, elections can be conducted in manners that lead to a more or less representative outcome. The corresponding mechanism to election is recall, by which people vote to remove someone from a role for which they were earlier elected. A recall election is followed by, and sometimes combined with, a special election to fill the seat vacated by the official who was recalled. Retention elections, in which voters determine whether a judge remains in office, are used in several states and are a kind of hybrid election-recall mechanism.

The mechanisms of direct democracy are powers which people in indirect democracies vest in elected officials: initiative and referendum. Initiative is the power to propose and enact laws: i.e., legislative power. Ballot initiatives are the relatively rare occasions in which voters exert some direct control over what laws are enacted. The power of referendum is to initiative what recall is to election: it is the means by which enacted laws are repealed. In practice, the terms ‘initiative’ and ‘referendum’ are both used primarily to refer to legislative proposals that are voted on directly by voters. There are other, non-legislative powers that in theory could be assigned to voters at large. However, we’ll stipulate for the purposes of this discussion that it is a bad idea to give executive (enforcing the law) and judicial (interpreting the law) powers to the general electorate.

At the federal level, there is no popular initiative or referendum. All federal legislation is promulgated, amended, or repealed by the initiative of US Congress. Nor are any federal officials subject to recall. (Federal judges are not subject to retention elections, as they serve during “good behavior.”) Hence three of the four mechanisms of democracy — and both of the mechanisms of direct democracy — are unavailable at the federal level. This leaves only election. The federal government is less removed from popular control than it was originally. US Senators have been elected by popular vote since the 17th Amendment to the US Constitution, ratified in 1913. Further, every state apportions its electoral votes for president on the basis of popular vote. However, discontent with the federal government has led to numerous calls to reform these entities or the way they’re elected. In some cases, people even call for the abolition of the electoral college or US Senate. These institutions and the way their members are selected do not necessarily represent the varied interests of US citizens and their diverse values. Many reformers look to parliamentary countries (e.g., New Zealand) that make use of systems like proportional representation and ranked-choice voting for inspiration. Some US states make limited use of some mix of these enhanced democratic mechanisms. But by-and-large, the various states of the US recapitulate the limited and indirect forms of democracy found at the federal level.

As the United States prepares for a presidential election marked by extreme polarization and cautious attention from the rest of the world, there will be a lot of talk about the US system of government. The candidates will tout the US as a great democracy that will flourish under their leadership, and will warn of the degradation democracy faces at the hands of their opponent. It is important to keep in mind when evaluating all this rhetoric how little democracy the US has ever had, especially at the federal level.

Under Discussion: Consent of the Governed? Obstacles to Free and Fair Elections

photograph of an "I tried to vote today" sticker

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

Addressing the House of Commons in 1947, Winston Churchill famously said, “it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.” It is not difficult to identify problems with democracy. Citizens aren’t always well informed on critical issues, so they sometimes vote in large numbers for disastrous policies and candidates. Sometimes substantial groups of people hold positions on moral issues that harm other people or violate their basic human rights. Democracy doesn’t ensure just outcomes, so it isn’t always perfect. On the other hand, democratic institutions are essential for grounding the authority and legitimacy of government. It is only when all citizens can vote in free and fair elections that government functions with the consent of the governed. Respect for democratic processes is also critical for keeping the peace among competing factions. Governments that honor democratic traditions have ways of preventing disagreements among political groups from being resolved violently.

Democracies that stifle the ability to vote or that seek to minimize the extent to which one person’s vote counts as much as any other person’s are democracies in name only. True democracies are respectful of the equal moral worth of all persons. Organizations like the National Democratic Institute and the United Nations Electoral Assistance Division have worked tirelessly to observe elections worldwide to support and strengthen democratic institutions. The hope is that their presence will contribute to elections that are fair so that authoritarian regimes are not painted with a veneer of legitimacy.

We don’t have to look abroad for examples of interference with the free functioning of democracy. If democracies respect the equal moral worth of all persons, and if government is only legitimate if it has the consent of the governed, then the early system of government in the United States was not a true democracy, since the federal government left decisions regarding who could vote up to the states. The states routinely disenfranchised women and Black people. It took constitutional amendments to change that. Even after these amendments were passed, states still had the power to pass laws regarding voting. Many states enacted poll taxes and literacy tests as prerequisites for voting. They knew that this would serve as a practical way of preventing Black people from exercising their voting rights.

We don’t have to look to history to find examples of democracy being thwarted and undermined. Our current legislators, motivated by winning elections, making money, and holding onto power, engage in all sorts of tactics to see to it that only the votes of their supporters are counted.

One of the primary methods of misrepresenting the will of the people is gerrymandering. Gerrymandering is the practice of drawing voting district lines in unnatural ways. So, for example, if members of political group A live in the city and members of political group B are drawing the districts, group B may draw the districts in such a way that any one of them captures only part of the city voters but plenty of the voters in the suburbs and rural areas, diluting the voting power of political group A. Gerrymandered districts don’t reflect the will of the people. They misrepresent the political preferences of specific communities.

Democracy is also undermined when some citizens are taxed, and yet have either no representation in Congress or fail to have proportional representation. The United States fails this test when it comes to Puerto Rico, Guam, and the District of Columbia — places populated by voting taxpayers that do not have representation in Congress. What’s more, all states have the same number of senators, regardless of their respective populations. The state of California has a population of 39.51 million people. It has two senators. The state of Wyoming has a population of 580, 000. It also has two senators. As a result, the residents of the state of Wyoming have significantly more proportional voting power than the citizens of California.

The number of representatives in the House that each state has depends on their population. The population is studied and recorded by the census, which is a survey of households conducted every ten years. For a democratic system to be free and fair, no undue burdens or significant obstacles should be placed in the way of the opportunity that each household has to fill out their census report. This year, the Commerce Department warned that completing the census on time would not be possible because of the constraints caused by the pandemic. They requested an extension. The Trump administration did not comply with this request, arguing that the data must move to the analysis phase. Not only did the administration not extend the deadline, they actually moved the deadline up. This week, the Supreme Court ruled in favor of the Trump administration. This means that the administration will have its hand in apportionment of representatives to the House, even if Trump loses the election. Civil rights groups such as the National Urban League have argued that this decision is likely to harm already disadvantaged communities.

Another significant obstacle in the path to free and fair elections is voter suppression — the practice of preventing voters from certain demographics from voting. Poll taxes and literacy tests were forms of voter suppression in our country’s early history, but those kinds of tactics have not been relegated to a bygone era. In the age of coronavirus, voters are concerned that their mail-in votes will not be counted. Nevertheless, many elected officials across the country have arbitrarily limited the number of drop-off ballot locations. For example, in Texas, republican Governor Greg Abbott issued an order to shut down dozens of ballot drop-off sites weeks before the election, opting instead for a policy that provides one drop-off site for every county, regardless of its population. The result is that Harris County, which has a population of more than 4.7 million people, has the same number of ballot drop-off boxes — one — as Rockwell County, with a population of 88 thousand. A federal appeals court recently upheld Governor Abbott’s order.

The political voices of individual human beings with interests and moral worth should be the central building blocks of democratic decision making. This isn’t possible when the interests of powerful corporations end up dwarfing the voices of the people. The Supreme Court’s opinion in Citizens United v. Federal Election Commission, which maintained that corporations are people with free speech rights that can be exercised through unlimited donations to political campaigns, made the United States a substantially less democratic country. In his dissent, Justice John Paul Stevens argued that the majority decision constituted a “rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government.”

Finally, free and fair democratic elections are undermined by lies, threats, and the intentional mass spread of misinformation. For example, President Trump has repeatedly claimed that mail-in voting will result in massive amounts of voter fraud. He blasts this message through his significant political megaphone even though there is no evidence to believe that it is true and plenty of evidence to believe that it is false. The Trump campaign is also gathering an “army” of poll watchers to go to the polls on election day, raising concerns about a chilling effect on voter participation and the possibility of voter intimidation at the polls.

The National Democratic Institute raises red flags for elections that present as democratic, but that don’t actually operate in ways that respect the will of the people. Perhaps they should keep an eye on our elections here in the United States.

Liability and Luck

photograph of lone firefighter standing before small wildfire blaze

In the unlikely event that you have not yet experienced your daily dose of despair concerning the fate of humanity, then I’d highly encourage you to read Elizabeth Weil’s ProPublica piece “They Know How to Prevent Megafires. Why Won’t Anybody Listen?” The article makes two basic points. 1) Extensive controlled burns would be an effective precautionary strategy that would prevent recurring megafires. 2) There are political and financial incentives which trap us into a reactionary rather than precautionary fire strategies.

There are clearly lots of perverse incentives at play, but one part of the article was especially interesting:

“How did we get here? Culture, greed, liability laws and good intentions gone awry. There are just so many reasons not to pick up the drip torch and start a prescribed burn even though it’s the safe, smart thing to do. . . . Burn bosses in California can more easily be held liable than their peers in some other states if the wind comes up and their burn goes awry. At the same time, California burn bosses typically suffer no consequences for deciding not to light. No promotion will be missed, no red flags rise. ‘There’s always extra political risk to a fire going bad,’ Beasley said. ‘So whenever anything comes up, people say, OK, that’s it. We’re gonna put all the fires out.'”

It is risky to engage in controlled burns. Things can go wrong, and when they do go wrong it could be pretty bad, someone could lose their home, maybe even lose their life. Of course, it is far riskier, in one sense, to not engage in controlled burns. So why, then, our incentives set up the way they are?

At least two different explanations are likely at play.

Explanation 1: Action vs Inaction. First, in general, we are more responsible for actions than for inactions. The priest who ‘passed by the other side’ of a man left for dead did something terrible, but did not do something as terrible as the thieves who beat the man up in the first place. As a society we jail murders, we don’t jail the charitably apathetic, even if the apathetic are failing to save lives they could save.

And indeed, this point does have an appropriate corollary when talking about fire suppression. I am not responsible for houses burning in California — this is true even though last spring I could have bought a plane ticket, flown to California, and started burning stuff. Had I done so, likely things would have gone terribly wrong, and in that case I really would have been responsible for whatever property I had destroyed. This seems appropriate, it could be catastrophic if my incentives were structured such that I was punished for not starting vigilante fires.

Elizabeth Anscombe gives us a similar example. If the on-duty pilot and I are both asleep in our cabins, then we are doing the very same thing when our ship hits an iceberg. Yet it was the pilot, and not I, who sunk the ship. Indeed, had I, a random passenger, had tried to navigate the ship we would have absolutely held me responsible when something goes wrong.

So, what is the principle here? Is it that amateurs are specially responsible for actions? No, because we can also identify cases where we indemnify amateurs for their actions. Perhaps the best example here is good Samaritan laws. These laws protect untrained people, like myself, if we make a mistake when trying to render emergency first aid.

What is really going on is that we don’t want passengers trying to navigate ships. Nor do we want aspiring philosophers attempting unsupervised controlled burns in California. But we do want pilots to navigate ships, and we do want burn bosses attempting controlled burns. As such, we should construct incentives which encourage that, and protect people from culpability even if things occasionally go wrong.

Explanation 2: Causal Links. Second, we trace responsibility through causality. Because you caused a house to burn down you are, at least partially, responsible for that damage. The problem is, it is almost always easier to trace causality to actions than to inactions. We can identify exactly which active burning causes damage. We can easily say, “the first you started on February 14th destroyed these two house.” It’s much harder to say “the not burning that you didn’t do on February 14th was what allowed the fire to get out of hand.”

And indeed, I think probably we can’t really hold people responsible for any particular failure to burn. We can hold people responsible for how much controlled burning they can do in general, but we can’t trace causal paths to hold them responsible for any particular bad result of inaction. Indeed, it would be unfair to do so, no burn boss can’t foresee when a particular failure to burn will destroy a house (in the way they can sometimes foresee when burning in a particular area might destroy a house). This creates a problem though. Because we can’t hold people fully responsible for their inaction, that means we must hold people disproportionately responsible for actions, thus perversely incentivizing inaction.

This also parallels our interpersonal lives. For example, we generally want people willing to think for themselves. But we are also far more likely to condemn people for reaching terrible views they came up with themselves than for failing to recognize what is wrong with the conventional view. This can create perverse incentives, however. It might really be true that we are justly responsible for coming to terrible conclusions, but because it is so hard to hold people responsible for the majority view it might be important to forgive even egregious mistakes to keep incentives favoring original thought.

So here is the general point. Assessing responsibility is far more complicated than just establishing whether someone played a causal role. Sometimes holding people responsible for things they really should not have done can create perversely disincentivize people from taking risks we want them willing to take. The fires in California give one clear example of this, but the point generalizes to our lives as well.

The Morality of the Arts vs. Science Distinction

image of child architect with hard hat standing in front of sketch of city skyline

If one pursues post-secondary education, is it better to study the arts or focus on the sciences? Given the career opportunities and prestige, it has become a common source of mockery that someone would choose to pursue the arts rather than the sciences. But what makes the arts different from the sciences? Do how and why we make such distinctions have ethical ramifications?

What is the difference between the liberal arts and the sciences? The concept of “the arts” stretches back to antiquity where ‘art’ designated a human skill. These skills were used to make things that are artificial (human made), an artifact. Later, the concept of the liberal arts was used to designate the kind of education required for a free citizen (the term “liberal” designating freedom rather than a political ideology) to take part in civil life. Today, the arts may refer to fine arts (like painting or music) as well as liberal arts such as various humanities (philosophy, history, literature, linguistics, etc.) and social sciences (like sociology, economics, or political science). These are now held in contrast to the STEM fields (science, technology, engineering, and mathematics).

The distinction made between the arts and the sciences takes on a moral character when the conversion drifts towards what kinds of education we think is important for meeting the needs of modern society. The distinction goes beyond merely what governments or universities claim the difference is, for is also a distinction that is made by potential students, parents, taxpayers, employers, and society at large. How does society make that distinction? A quick internet search for the relevant distinctions suggests a tendency to emphasize the objective nature of science and the subjective nature of the arts. Science is about finding truth about the world, whereas the arts focus on finding subjective representations according to cultural and historical influences. The sciences are technical, precise, and quantitative. The arts are qualitative, vague, and focus less on right or wrong answers, and thus are thought to lack the rigor of the sciences.

These kinds of sharp distinctions reinforce the idea that liberal arts are not really worth pursuing, that higher education should be about gaining the skills needed for the workforce and securing high-paying jobs. To add to this, the distinction has been a flashpoint of an ongoing culture war as the large number of liberal arts memes and critical comments on the internet will testify to. The result has been severe cuts in liberal arts education, the elimination of staff and services, and even the elimination of majors. To some this may be progress. If the liberal arts and humanities are subjective, if there is little objective truth to be discovered, then they may not be worth saving.

Justin Stover of the University of Edinburgh, for example, believes that there is no case to be made for the humanities. While defenders of the humanities may argue that they are means of improving and expressing our ideas, that they provide skills that are relevant and transferable to other fields and pursuits, or that they are a search for values, Stover believes that these benefits are hollow. He points out that study in the humanities isn’t necessary for actual artistic expression. While studies in obscure languages or cultures may foster useful skills for careers outside of the academy, these are mere by-products of study and not something that makes a strong case for their study.

In addressing the matter of value, Stover notes,

“’values’ is a hard thing to put in a long diachronic frame because it is not clear that there is any analogous notion in any culture besides our own. Values can hardly be a necessary component of the humanities — much less the central core — if there was no notion of them for most of the humanities’ history […] values might have a lot to do with Golden Age Spanish literature; but what have they to do with historical linguistics?”

Stover suggests alternatively that studies in the humanities fulfills a social function by creating a prestigious class of people who share certain tastes and manners of judgment but that ultimately there is no non question-begging justification for the humanities. He notes, “The humanities do not need to make a case within the university because the humanities are the heart of the university.” One cannot justify the importance of the humanities from outside of the perspective of the humanities.

The moral concern on this issue is less about the morality of defending a liberal arts education compared to a science education, but rather about how we are making the distinction itself. Are we talking about methods? Disciplinary norms? The texts? The teaching? Stover’s argument relies on understanding the humanities as an essentially different thing from the sciences. But are there actually good reasons to make these distinctions? Anyone who has studied logic, linguistics, or economics knows how technical those fields can be. By the same token, several studies of the sciences reveal the importance that aesthetic taste can have not only on individual scientists, but on whole scientific communities. The response of scientific communities to the COVID-19 pandemic — disagreements about treatment protocols, publication concerns about observations of the disease, and so on — reveals that the notion that science is a purely objective affair while the arts are purely more subjective is more of a slogan than a reality.

Values are not a mere “notion” of university professors and academics. While Stover doesn’t clarify what he means by values, I would suggest that values are at the heart of the liberal arts and humanities — a ‘value’ at its core simply denotes what people take to be important and worth pursuing. My morning coffee is important to me, I pursue it, I prize it, it has value. The humanities have always been a matter of addressing the issues that humans consider important. So, the answer to the question of what do values have to do with historical linguistics is “a lot.” Languages change over time to reflect the problems, interests, and desires that humans have; linguistic change is a reflection of what is important, what is valued by a society and why.

But if this is the case, then science and the many STEM fields are not immune from this either. What we choose to focus on in science, technology, and engineering reveals what we care about, what we value (knowledge of climate change, for example, has changed how we value the environment). The notion that the humanities can only aspire to the subjective with only secondary benefits in other areas is a moral failure in thinking. Science is not isolated from society, nor should it be. By the same token, a method and style that focuses on empirical verification and experimentation over subjective elements can improve what the humanities can produce and help us focus on what is important.

In addressing the cross section of human interest and scientific method, philosopher John Dewey notes,

“Science through its physical technological consequences is now determining the relations which human beings, severally and in groups, sustain to one another. If it is incapable of developing moral techniques which will also determine these relations, the split in modern culture goes so deep that not only democracy but all civilized values are doomed.”

The distinction between the arts and the sciences is not essential or absolute, but one of our own creation that reflects our own limited thinking. Any art, just like science, can aspire towards critical, experimental, objectivity of some degree just like any scientific and engineering pursuit should be understood in terms of its role in the larger human project. The more we try to separate them, the more detrimental it will be to both. The problem regarding whether there is a case to be made for the arts disappears once we drop the notion that there is complete separation — the more important and interesting moral problem becomes how we might best improve our methods of inquiry that are vital for both.

Bad Science, Bad Science Reporting

3d image of human face with severalpoints of interest circled

It tends to be that only the juiciest of developments in the sciences become newsworthy: while important scientific advances are made on a daily basis, the general public hear about only a small fraction of them, and the ones we do hear about do not necessarily reflect the best science. Case in point: a recent study that made headlines for having developed an algorithm that could detect perceived trustworthiness in faces. The algorithm used as inputs a series of portraits from the 16th to the 19th centuries, along with participant’s judgments of how trustworthy they found the depicted faces. The authors then claimed that there was a significant increase in trustworthiness over the period of time they investigated, which they attributed to lower levels of societal violence and greater economic development. With an algorithm thus developed, they then applied it to some modern-day faces, comparing Donald Trump to Joe Biden, and Meghan Markle to Queen Elizabeth II, among others.

It is perhaps not surprising, then, that once the media got wind of the study that articles with names like “Meghan Markle looks more trustworthy than the Queen” and “Trust us, it’s the changing face of Britain” began popping up online. Many of these articles read the same: they describe the experiment, show some science-y looking pictures of faces with dots and lines on them, and then marvel at how the paper has been published in Nature Communications, a top journal in the sciences.

However, many have expressed serious worries with the study. For instance, some have noted how the paper’s treatment of their subject matter – in this case, portraits from hundreds of years ago – is uninformed by any kind of art history, and that the belief that there was a marked decrease in violence over that time is uniformed by any history at all. Others note how the inputs into the algorithm are exclusively portraits of white faces, leading some to make the charge that the authors were producing a racist algorithm. Finally, many have noted the very striking similarity between what the authors are doing and the long-debunked studies of phrenology and physiognomy, which purported to show that the face of one’s skull and nature of one’s facial features were indicative of their personality traits, respectively.

There are many ethical concerns that this study raises. As some have noted already, developing an algorithm in this manner could be used as a basis for making racist policy decisions, and would seem to lend credence to a form of “scientific racism.” While these problems are all worth discussing, here I want to focus on a different issue, namely how a study lambasted by so many, with so many glaring flaws, made its way to the public eye (of course, there is also the question of how the paper got accepted in such a reputable journal in the first, but that’s a whole other issue).

Part of the problem comes down to how the results of scientific studies are communicated, with the potential for miscommunications and misinterpretations along the way. Consider again how those numerous websites clamoring for clicks with tales of the trustworthiness of political figures got their information in the first place, which was likely from a newswire service. Here is how ScienceDaily summarized the study:

“Scientists revealed an increase in facial displays of trustworthiness in European painting between the fourteenth and twenty-first centuries. The findings were obtained by applying face-processing software to two groups of portraits, suggesting an increase in trustworthiness in society that closely follows rising living standards over the course of this period.”

Even this brief summary is misleading. First, to say that scientists “revealed” something implies a level of certainty and definitiveness in their results. Of course, all results of scientific studies are qualified: there is never an experiment that will say that it is 100% certain of its results, or that, when measuring different variables, that there is a definitive cause and effect relationship between them. The summary does qualify this a little bit – in saying that the study “suggests” an increase in trustworthiness. But this is misleading for another reason, namely that the study does not purport to measure actual trustworthiness, but perceptions of trustworthiness.

Of course, a study about an algorithm measuring what people think trustworthiness looks like is not nearly as exciting as a trustworthiness detection machine. And perhaps because the difference can be easily overlooked, or because the latter is likely to garner much more attention than the former, the mistake shows up in several of the outlets reporting it. For example:

Meghan was one and a half times more trustworthy than the Queen, according to researchers.

Consultants from PSL Analysis College created an algorithm that scans faces in painted portraits and pictures to find out the trustworthiness of the individual.

Meghan Markle has a more “trustworthy” face than the Queen, a new study claims.

From Boris Johnson to Meghan Markle – the algorithm that rates trustworthiness.”

Again, the problem here is that the study never made the claim that certain individuals were, in fact, more trustworthy than others. But that news outlets and other sites report it as such compound worries that one might employ the results of the study to reach unfounded conclusions about who is trustworthy and who isn’t.

So there are problems here at three different levels: first, with the nature and design of the study itself; second, with the way that newswire services summarized the results, making them seem more certain than they really were; and third, with the way that sites that used those summaries presented the results in order to make it look more interesting and legitimate than it really was, without raising any of the many concerns expressed by other scientists. All of these problems compound to produce the worries that the results of the study could be misinterpreted and misused.

While there are well-founded ethical concerns about how the study itself was conducted, it is important not to ignore what happens after the studies are finished and their results disseminated to the public. The moral onus is not only on the scientists themselves, but also on those reporting on the results of scientific studies.

Considered Position: Flawed Democracy – Voter Participation

photograph of "Vote" written on chalkboard with drawing of American flag

This piece concludes this Considered Position series on the United States’ claim to being a “flawed democracy.” To see the earlier segments, start here (part 2, part 3).

Most people need to vote if we want most people’s interests represented. Unfortunately, a great number of people don’t vote. Either because they are prevented from doing so or because they just don’t care, many people who can legally vote don’t. In this section we will explore the idea of the “rational nonvoter.” To do so, we will consider debates around mail-in voting. Afterward, we’ll examine what may be the greatest roadblock in having a functioning, representative democracy: voter apathy.

Mail-In Voting

In recent days, mail-in or absentee voting has gotten a lot of press. COVID-19 poses a significant threat to the upcoming election. Either people go to the polls, and the virus spreads and kills, or people don’t go to the polls and the low voter turnout diminishes the legitimacy and representativeness of the results.

One prominently suggested solution to this dilemma is to have people just vote from home via mail-in ballots. Absentee ballots are already used by military personnel while serving abroad. But they are also used domestically. All states allow at least some citizens to vote absentee and more than two-thirds allow all citizens to vote this way. Those states without “no-excuse” mail-in voting require some sort of reason that explains people’s inability to physically come to the polls. Lastly, some states conduct elections entirely by mail and automatically send ballots to all registered voters.

A number of Republican politicians, including Trump, have opposed this solution, typically spreading conspiracy theories and misinformation to justify their position, but most people, including many Republicans, support some sort of solution like this. Besides the patently false idea that mail-in voting increases voter fraud in any significant way, there is one common bad reason for opposing mail-in voting. As Trump himself put the common Republican worry, “if you’d ever agreed to [universal mail-in voting], you’d never have a Republican elected in this country again.” Fortunately, this too is false. While increasing access to mail-in voting might increase turn-out and increasing turn-out sometimes modestly aids Democrats in elections, it really matters more who turns-out, and the evidence suggests that “universal vote-by-mail has no impact on partisan turnout or vote share.” In other words, if it changes anything, universal vote-by-mail increases the number of votes, but doesn’t do much of anything to affect who those votes are for.

Nonetheless, as we’ve discussed before, you can be right about something even if you don’t have good reasons. That’s the difference between true belief and knowledge. And in fact, there are some very good reasons to be wary of universal mail-in voting. It may be more of a necessary evil than a universal boon.

Probably the single greatest problem with mail-in voting is the loss of the secret ballot. “The secret ballot” refers to how, when you go to the polls to vote, you can vote whichever way you want without anyone knowing. This is fundamental to democracy. If people are paid or coerced to vote one way or another, the democratic process is delegitimized. With a secret ballot, it is still possible to pay or threaten someone to vote a certain way, but there is no way to confirm if your bribe or threat worked since no one but except maybe a few election officials will ever see your vote. So it isn’t much done. However, with mail-in voting this all changes. Someone’s abuser can stand over them, force them to vote one way, and seal and send the envelope themselves. A corrupt caretaker can do the same to an elderly person. And so could a parent coerce a child. Even without the threat of force, more subtle forms of coercion, including moral judgment and social pressure, can be much more powerful when the coercer can confirm whether or not you listened to them.

In addition, none of these examples even touch on the possibility of buying people’s votes. There are two main ways ballots are checked to make sure they are legitimate. First, there is the ballot itself. It is printed on very special paper with a special code, unique to each registered voter. This way, it’s almost impossible for people to make counterfeit ballots. Second, many states use signature verification to assure a particular voter was really the one filling out their ballot, and the United States Postal Service (USPS) has procedures for tracking mailed ballots and flagging potential fraud.

However, all this only stops people from wholly counterfeiting votes. It is perfectly possible for a real person to receive their ballot, sign it, and sell it to someone else. Even if the ballot is not mailed from the voter’s house, this will not result in it being flagged as potentially fraudulent by the USPS. This is because of the legality of ballot collection in some states. Ballot collection is the process of people other than the voters themselves collecting and submitting voters’ ballots. In some places, this is limited to family members or caretakers. In other places, people working for political campaigns can do it too. The potential for fraud is there and it would likely be difficult to identify and prevent. However, it cannot be reiterated enough that this does not happen sufficiently frequently to have been responsible for any election to have gone one way or another.

In any case, coercion of this sort would seem to be small-scale and disorganized. An abuser’s coercion of someone’s vote in one direction will be countered by another abuser’s coercion of someone’s vote in the other direction. The fact that ballot collection isn’t legal in most places, and that where it is legal there are usually limits, means buying votes in the way I described on a large-scale would be difficult. It would be tough to do systematically and given that the margins on elections are usually on the order of magnitude of at least thousands of votes, it would take a lot of work to change an election. Plus, the aforementioned USPS flagging would require any would-be election buyers to deposit those thousands or tens of thousands of ballots in a wide enough area to not arouse suspicion. And, finally, keeping any such operation secret would require each of those thousands of bought-off voters to keep quiet. The odds of this happening on such a large-scale are on par with the odds of other large-scale operations like the moon landing being faked.

On the other hand, there are some seriously good reasons to support universal mail-in voting. The biggest reason here has to do with those rational nonvoters I mentioned at the start. A rational nonvoter is someone who doesn’t vote who is rational in the economic sense. What this means is that for these people, the cost of voting to them surpasses the cost of not voting. A great deal of people, as we will discuss in more detail later, do not think their votes matter, mostly because of the influence of corporate interests like the ones we discussed when we talked about Citizens United. And if your vote doesn’t matter, why waste your time and gas money driving over to the polling station? More importantly, why take off time from work? Economic circumstance discourages many people from voting. Fourteen percent of registered voters who didn’t end up voting blame a conflicting schedule or being too busy. Filling out an absentee ballot, in contrast, is easy. They send it to you and you don’t even need to buy a stamp. By decreasing the cost of money and time in voting, you make it easier for voters to rationalize voting. And as we said at the start, the more voters, the more accurately an election represents citizens’ interests.

Universal mail-in voting would be a big change to our electoral system. Whether that change would be for the better or for the worse depends a lot on what precautions we take. Mail-in voting has real potential for fraud, even if it hasn’t commonly happened in the recent past. At the immense scale required to have universal mail-in voting for America’s hundreds of millions of registered voters, it’s certain any cracks in the system will be tested. As with any issue, we are forced to weigh the benefits and costs but we won’t really know whether we made the right choice until after the election is done.

Voter Apathy

If COVID-19 keeps a great number of people from turning out in the 2020 election, questions will be raised about the election’s legitimacy. If only a fraction of the population votes, and only a plurality of those votes are for the winning candidate, it will be difficult for the winner to claim a mandate from the people. At the same time, it would be hard for things to get much worse than they already are, turnout-wise.

In the 2016 election, 55.67 percent of the voting-age citizen population voted. That’s way lower than most other democratic nations. Let’s take things further. Donald Trump won the 2016 election according to the Electoral College while losing the popular vote, garnering only 46.09 percent of the votes cast. Doing some math here, we can see only 46.09 * 55.67 = 25.66 percent of the population cast a vote for the current President.

It is difficult to compare the election of our president to the elections of Prime Ministers in parliamentary states but doing so may give us a rough idea of how poor our president’s mandate is (importantly I don’t just mean Trump here: US turnout hasn’t changed much in the last several decades). Belgium had the highest turn out of any nation in 2014 at 87.21 percent. And, the governing coalition held 83 of 150 seats in their Parliament. With the same calculation, we can say roughly 48.25 percent voted for the ruling government. This is clearly a much stronger mandate.

Low voter participation raises fundamental questions about our democracy. A basic view of representative democracy (the sort we have) is that a representative only deserves power if they have popular support. The laws, too, are only legitimate if they are enacted by a government which has popular support. Ultimately, society and government are social constructions; they are part of the social imaginary. They don’t exist in the world like rocks or trees. So the power and effectiveness of government, much like the power of Santa Claus on small children, depends on how much people believe in it.

And people don’t believe in it very much. Around 30 percent of registered voters who did not vote in 2016 did not vote either because they “did not like the candidates or campaign issues” or because they were “not interested” or “felt [their] vote would not make a difference.” The former reason was more common than the latter but 2016 wasn’t terribly representative of people’s general reasons for not voting. Donald Trump and Hillary Clinton were both disliked more than any candidates in recent memory. But more familiar is the sentiment people have that their vote “would not make a difference.”

There are a number of reasons for this sentiment. Foremost among these is a concern with money’s influence on elections. About 57 percent of people agreed in a poll with the statement “politics and elections are controlled by people with money and by big corporations.” This is an issue we have covered at length already. In short, there is little regulation on campaign donations and what regulation there is isn’t enforced very well.

Another major reason for people’s apathy toward voting is that they don’t think their votes matter in a numerical sense. In a nation of over 300 million people, the role each individual vote has in determining a presidential winner or loser has little relevance. This argument stems from a bit of a logical fallacy though. Consider a jar with red and blue sand. When mixed, it appears purple. And every grain of sand is very small. You can pluck out any grain of sand, red or blue, and say “this grain of sand is so small, it has no contribution to the color of this jar.” And when you remove it, you don’t change the color of the jar. Does this prove your point? Of course not. By the same logic, you could claim to be able to remove all the sand, grain by grain, and that the jar would remain purple instead of clear. You could claim the same about removing all the blue sand or red sand.

When one person or one grain of sand is missing from the ballot box or jar, the color of the results doesn’t change. But if many people do not vote, the outcome can change. The only case where it wouldn’t would be if those who didn’t vote were represented perfectly by those who did. If you’re the only one not voting in your whole state, yeah, your vote or lack thereof probably doesn’t matter. But when upwards of 20 percent of the population thinks that way and elections are decided by single digit margins, it is irrational for all those people to think their votes don’t matter. It’s the same logic that advocates apathy in the face of climate change and we all know how helpful such apathy has been so far.

One legitimate grievance voluntary nonvoters have (for many people are prevented from voting by reasons outside of their control) is that candidates don’t represent them. The fault for this at least in part lies with the primary system. Political primaries are the intra-party elections held to determine which candidates will represent the parties on general election ballots. These only started happening in the 1900s and had little real influence in the determination of candidates until the 1970s. Before this, party conventions decided who would be on the ballot. Typically, the candidates were chosen by conventions based on electability. Party values were secondary to victory. Nowadays, however, primaries dominate. However, it’s not immediately clear why this objectively more democratic system should lead to problems with how well candidates represent voters.

The best way to think about it involves first remembering how little people participate in elections in the first place. If you think turnout in general elections are bad, you will struggle to believe how bad turnout is for primaries. Only 28.5 percent of eligible voters voted in both parties’ primaries combined in 2016. Only those who care most about politics are going to turn out for these, and it’s easy to see that people with more extreme beliefs are thus going to turn out than people with moderate beliefs. People aren’t passionate about moderation and compromise. This leads to more extreme candidates being elected by primaries. Those who end up thinking about voting in the general elections will be far less extreme and will thus feel unrepresented leading them to refrain from voting.

Political primaries would be a great thing if everyone voted in them: they are certainly more democratic than the older convention-based system of candidate selection. The people who rallied for them to become the standard for candidate selection were not malicious or stupid. Just as we have seen with a variety of political problems, the cause can often come from rational and benevolent individual decisions. The same goes for corporate campaign donations. While the surface-level behavior of corporate donors seems greedy and self-serving, the roots can be good.

If we are a democracy, we need to encourage changes to our electoral system that will maximize the amount of democratic participation. Those reforms could take any number of shapes but they must be made for change in any other domain to occur. Without democratic legitimacy, any leader, whatever they do, is ineffectual, since their actions are not representative of the will of the people.

Conclusion

This series concludes with a discussion of voter apathy because it is a problem that must be resolved before change can be made for the better in any of the domains we have discussed. People have to care. They have to learn and think. And we have to take care as a community to watch over one another to assure none of us contributes to something terrible out of an innocent or even benevolent motive. Even after reading all of this, having seen all these arguments and motives laid out, it is unlikely that you will change your behavior anymore than I have for learning all this. As Portia said in Shakespeare’s Merchant of Venice:

“If to do were as easy as to know what were good to do, chapels had been churches, and poor men’s cottages princes’ palaces. It is a good divine that follows his own instructions: I can easier teach twenty what were good to be done, than be one of the twenty to follow mine own teaching.”

Nonetheless, life is a series of moments. And if in some of these we remember what we have learned, we might make the right decisions. To be apathetic is to submit to the unconscious, amoral, tide of the structures of our societies that already have great control over the paths we take. And so long as we push, just ever so slightly, perpendicularly to that tide, exerting some small amount of free, conscious will, in just a very few moments, from time to time, things can change and for the better. To refrain from even this is a choice that cannot be blamed on the system, even for all of its ills.

The mission of the Prindle Institute for Ethics is to foster the skills of moral reasoning that give us the real freedom to choose in those few, decisive moments. Without these skills, the possibility for even small change in those moments is lost. Without them, the unconscious tide is all there is. As we have discussed throughout this series, plenty of extraordinarily harmful actions can be superficially justified and rationally so. And the systems under which we live, this tide, strongly incentivize us to adopt some of these while ignoring broader reaching, more complex moral concerns.

Whoever you are, whatever issues you care about, if you live in a democracy, elections and election reform are critical. Those minutes spent voting are some of the few moments where we have the chance to participate in decisive action. This series has been a depressing one, pointing out flaw after flaw in the electoral system. But we can’t just give up and focus on how depressing it is. We must think critically, examine our values, and place our focus instead on what the world can be. As the Lorax famously said in Dr. Seuss’s The Lorax:

“Unless someone like you cares a whole awful lot,

Nothing is going to get better. It’s not.”

Confirming Amy Coney Barrett: Against Secularism or For Religious Freedom?

photograph of Trump and Judge Barrett at nomination ceremony

On September 26, President Trump announced he would be nominating Amy Coney Barrett to fill the Supreme Court seat recently vacated by the departed Justice Ruth Bade Ginsburg. This decision is not only controversial considering the fact that recent political precedent would imply that the winner of the upcoming election should choose the next Justice, but also because of the perception that Barrett is not only under qualified to sit on the Court, but also potentially unfit considering her strong religious views. Barrett is a stout Catholic, member of the spiritual group People of Praise,  and has been vocal about the influence of faith on judicial ethos. Various politicians, activists, and even those with personal ties to Barrett have expressed staunch opposition to her nomination, most strongly on the basis of her perceived bias. However, in response to this criticism, many have come to her defense, arguing that not confirming Barrett on the basis of her religion is in fact religious discrimination.

Are these critics right to assert Barrett’s religious views are a conflict of interest? Are her defenders right to argue religious discrimination? And which is the correct interpretation of the First Amendment: secularism or religious freedom?

Secularism is informed by secular ethics, which derives morality from the human experience and rationale, rather than perceived higher powers or specific religious text or tradition. Secular states are countries guided by secular values in the political and governance process, neither favoring nor discriminating against any specific religion. The majority of countries in the world are considered secular states, including the United States.

The majority of the arguments over Barrett concern different interpretations of the principle of secularism. The principle of secularism aims to separate the state from any religious guidance or influence. In the United States, this concept is often boiled down to the “religious freedom” communicated in the First Amendment of the United States Constitution. Republicans, and others defending Barrett argue that to use her faith, or its influence on her, as a ground for not approving her is in itself religious discrimination. Critics, though not Senate Democrats specifically, are wary of Barrett because of their concern that her entire judicial philosophy is anti-secular if it is influenced by her faith.

This is not the first time that Barrett’s religious views have been brought up in the context of her judicial discretion. In 2017, Barrett was nominated for a federal judicial appointment by President Trump. During her confirmation hearing, Democratic Senator Barbara Feinstein expressed the concern that “The dogma lives loudly” within Barrett. Feinstein’s comment was simultaneously blasted as an expression of religious discrimination and rebranded by Catholics across the internet proudly. After Barrett’s nomination, this interaction has been visited again by Democrats and Republicans alike, by the former to reassert concern for her religious bias and by the latter to imply that much of the criticism of Barrett results from religious intolerance. Both of these concerns can be backed up by evidence. On the one hand, the current Supreme Court hosts 5 Catholics, by far more than any other religion. Despite this newfound domination of the bench, historically only 13 Catholics have ever sat on the Supreme Court, despite making up roughly 20% of the United States population. Some, such as law professor Cathleen Kaveny argue that the recent appointment of so many Catholics to the Supreme Court is a “victory over historic prejudice.” While Catholics do not face much modern day social persecution in the United States, that has not always been the case. Between the late 19th century and early 20th century, Catholicism in America was associated mainly with immigrants from Northern and Eastern Europe. These groups were discriminated against not only due to their immigrant and ethnic status, but also on the basis that Catholicism was morally perverse. Historically, Catholics were one of the groups targeted by the Ku Klux Klan, though this is not necessarily the case in modern times.

On the other hand, a Supreme Court made up of staunchly religious Justices, or too many from a certain religious faith, arguably stands in direct opposition to the principle of secularism. This guiding principle, most commonly associated with the separation of church and state, has been highly regarded since the formation of the United States. While the separation of church and state is often brought up in reference to legislative attempts to favor or discriminate on the basis of religion, the Supreme Court’s role in consistent affirmation of secularism is paramount to its existence. The Court regularly makes judicial decisions which involve the First Amendment, for example, recently in American Legion et al. v. American Humanist Assn. et al. Having a court made up with even a few deeply religious justices could impact the judicial philosophy of the most powerful court in this country. This alone a cause for concern considering the fact that certain religious traditions take hard, and sometimes unpopular stances on highly debatable moral issues. This is especially true of the religious group that Barrett identifies with, the People of Praise, which has been criticized for its reinforcement of gender roles and female subordination.

Outside of her possible beliefs, Barrett has been vocal about how her faith guides her stance on abortion, despite the fact that the majority of Americans support a woman’s right to choose. While the popularity of a certain legal stance does not necessarily speak to its morality, there is certainly an ethical value in having a judicial system which is fairly representative of the moral inclinations of the majority of the population. While the Supreme Court is not meant to be a political or moral institution, there are certainly righteous ethical concerns about our Justices sitting on the extreme end of the moral spectrum and serving to guide the legal interpretation and judicial discretion in every courtroom in America.

Barrett’s faith is not the only aspect about her which could guide one’s moral stance on her fitness to serve on the Supreme Court. Her age, gender, and even personal life might also be taken into account when deciding how one feels about her nomination. However, as long as discussions about her faith dominate political and media debate, our moral inclinations about her religious views will likely guide whether or not we believe she should be confirmed.

Considered Position: Flawed Democracy – Money in Politics

cartoon image of man speaking into megaphone made of money

This piece is part of a Considered Position series that reflects on the United States’ claim to being a “flawed democracy.” To see the earlier segments, start here.

We’ve spent a great deal of time here and here, discussing ways that the current US electoral system leads to the abuse of minority rights. However, certain minorities hold an enormous and disproportionate influence on politics. In previous sections, we’ve tended to use “minority” to mean a group that has a minority of the political power, regardless of its share of the population. In this next section we will be considering a different kind of minority, one that comprises only a tiny fraction of the population but which holds a significant amount of the political power. I am speaking, of course, of the rich and of corporations and the influence of their money in politics. We will consider in turn how money is used to influence politics, the fairly recent Citizens United decision that greatly increased this influence, and some potential solutions that minimize the difference in political power between the rich and the poor.

Lobbying

Once, the US federal government was a lot more corrupt than it is now. People complain nowadays about lobbying but lobbyists only offer, or threaten to take away, campaign donations. And while sometimes politicians use their campaign money on personal expenses, this is not terribly common. Back in the late 1800s, in the so-called “Gilded Age,” politicians were wildly corrupt. In 1886, the President Rutherford B. Hayes wrote in his diary, referencing Lincoln, “This is a government of the people, by the people and for the people no longer. It is a government by the corporations, of the corporations and for the corporations.” This was the most explicit form of corruption, quid pro quo, literally “this for that.” Corporations consciously bribed politicians who gladly took the bribes. Nowadays, thankfully, quid pro quo corruption has been greatly reigned in. However, a systemic and more subtle sort of corruption remains.

Citizen Lobbying

This is the institution of corporate lobbying. Lobbying isn’t a bad thing. Anyone can lobby. “Lobbying” just means taking action to persuade an elected official to vote one way or another on a certain piece of legislation. And it is central to American democracy. The practice is protected by the First Amendment (not Article the First) where it is written that “Congress shall make no law. . . abridging . . . the right of the people. . .  to petition the Government for a redress of grievances.” Anyone can do it, either by calling or writing individually to your congressperson or as part of a group, such as Mothers Against Drunk Driving. That organization successfully lobbied the federal government to raise the drinking age to 21. This was a good example of lobbying gone well. Increasing the drinking age was widely popular and remains so today.

Now all sorts of lobbying does have certain broad problems too. In general, lobbying results in politicians acting not according to the will of all of their constituents, or even the majority. Rather, politicians will tend to act in accordance with whichever citizen lobbying groups are most vocal. See, polls are expensive and sometimes inaccurate. But some people will voluntarily call their congressperson, or write to them, and make their opinions known. This may also be inaccurate but at least it’s cheap. Suppose that only 20 percent of a district’s constituents really support defunding Planned Parenthood. But if those 20 percent all call and write to you while, of the other 80 percent, only 10 percent contact you, it will seem like more than two-thirds of your constituents want Planned Parenthood defunded and so maybe you the congressperson will vote in support of some legislation doing just that. This is undemocratic. The minority is having their interests put ahead of the majority. But, on the other hand, it’s not the fault of the citizen lobbyists. Other, less-vocal citizens are free to speak up. They just don’t. And if a congressperson votes in accordance with those who speak up, she might be justified: those who call or write may care more and maybe those who care more should have their interests represented more commonly than those who don’t care enough to reach out.

However, economic circumstance, rather than just care, can affect who lobbies too. Consider this: everyone has the time to call or write their congressperson every once in a while. But who has the time to lobby for hours a day? The only ones who can do this are the ones who don’t have to work a normal job. And these will be the wealthy, non-working spouses, and those who are retired. These groups will have their interests overrepresented. Even if you care, if you have to work many hours a day, you’re not going to be able to make your interests known as effectively as these groups can. This seems to be unjustly undemocratic. Conventionally, we don’t think you deserve more political power just because you have more money.

Small Business Lobbying

The bigger problem, then, comes with groups that tend to have lots of money. I mean of course corporations. In 2018, $3.4 billion dollars, an unimaginable sum, was spent on lobbying at the federal, state, and local level. In its most basic form, corporate lobbying can be as innocuous as citizen lobbying. A small business, with only a handful of employees donating a few thousand dollars to a candidate who supports small businesses doesn’t seem to be doing much wrong. Now that’s still more money than most people will contribute to political campaigns. In fact, the vast majority of people don’t donate any money to political campaigns.

And, while there seems to be little problem with small businesses spending small amounts of money on local elections, when those small businesses ally with other businesses, large and small, and pool their money through large lobbying organizations, they can have enormous undue influence. The largest lobbying group is the deceptively named “US Chamber of Commerce,” which is an association of 3 million businesses of varying sizes. This group spent nearly $100 million on federal lobbying in 2018. They consistently support Republicans, having spent 93 percent of their lobbying money supporting them in the 2010 elections. And, 94 percent of those they support deny climate change.

Given that climate change is a problem that hurts all of us, including business owners, we are also forced to wonder, in whose interest are these corporations, or associations of corporations, acting? If not in the interest of their owners, then in the interest of whom? And, notice: in the previous sentences, it seems natural to attribute a responsible action with intent and all to a corporation or group of them. We treat corporations like people in the way we speak and in fact legally they have a certain kind of personhood. So maybe, given that people can act in their own interests, the corporation is acting in its self-interest. But that’s not quite right, right?

Ultimately, corporations aren’t really people. They are associations of real people. So it must be that the corporation is acting in the interests of those who compose it. But most people who are part of a corporation day-to-day are the people who work for it. But they rarely have real power over the decisions the corporation makes. Rather, that power belongs to the owners. In a small corporation, that’s usually just a person and the few employees might have a personal connection to him or her and can exert influence that way. But in larger corporations, ones that are publicly owned, responsibility is diffuse.

Public Corporation Lobbying

A CEO has token power over the company, but he doesn’t own it. He can be replaced. Ownership, and the responsibility it entails, is diffuse throughout all the stockholders. Many of these stockholders are people with retirement accounts who don’t have a great deal of their assets tied up in a single company, so they don’t care all that much about individual corporations’ actions. They just want the value of their retirement accounts to increase. So, then, these publicly-owned corporations tend toward acting, in a sense, in their own self-interest, toward increasing their own value and profits without much regard to anything else. Furthermore, these corporations tend to prize short-term profits over increasing value in the long-term. This can be most readily by the difficulty humans in general have with delaying gratification.

As a result corporations tend to always place profits over any set of values, even if following those values would benefit the corporation in the long run. While the economic costs of climate change are believed to be enormous, companies like Exxon have been happy to lobby against taking action to stop it, even while they have known since the 1980s that it was a problem. Like climate change itself, this is a problem of collective action with individuals carrying little blame and having minor incentives to act against the group interest. And so, like climate change, it is a difficult problem to solve. It is difficult to expect the millions of Americans who invest in the stock market through retirement accounts to have intimate familiarity with the ethics of every company their account has investments in.

So it seems the really bad sort of lobbying is when large, public corporations lobby the government so as to maximize their short-term profits without regard for any set of values or the general interest. But, this is also exactly the sort of lobbying that we cannot blame on any one individual. It is a systemic issue. Removing individual CEOs who advocate lobbying will do us no good. Like the ancient hydra, cutting off the company’s head will cause more to grow in its place. If that’s true, we need a systemic solution; we need the government to pass laws to limit this sort of corporate behavior. However, this solution too is difficult to accomplish. Elected representatives have strong incentives to tolerate corporate lobbying. And, unlike amoral public corporations, these congresspeople can have good reasons for their actions.

Imagine being a congressperson. You just won your first election and already people are talking to you about your next election. You promised a lot of groups a lot of things to get the money to finance your campaign. You’ve got big ideas for serious changes you think you can make for the better in this country. You want to make people’s lives better! And if you lose your election, well, who knows if those changes will ever get done? Plus, you’ve not worked a non-political job in quite a while. And being a congressperson pays very well, especially if you stick around long enough and become popular enough to become a party leader. Of course, you’d rather be totally independent of those nasty “special interests” but it’s a lot harder to build your political war chest from small-dollar donations. You want to be certain of your reelection so you can get your goals accomplished, all of them in service of your constituents. So when that lobbyist from Exxon calls you up and offers a huge campaign donation in exchange for a promise that you vote down that upcoming bill. It’s something about opening up some remote part of Alaska for oil drilling. And you’re just a Senator from Iowa. Your constituents don’t care. You’re dedicated to serving them! So you promise Exxon whatever they want. You’re not a bad guy, just someone trying to change the world for the better.

In this admittedly charitable view of the relationship between politicians and lobbying, the congressperson is not deliberately doing wrong out of his own self-interest. Self-interest plays a role, and it will always play a role in politics so long as being a congressperson is a paid job (which it is for good reason) and so long as there are personal benefits to having power. People can desire to remain in office purely out of self-interest even without any more explicit bribes going on. However, it’s not hard to believe most politicians accept lobbyists’ money for good reasons as I’ve described above, at least some of the time.

Politicians do frequently care about their constituents. And so the desire to do good in one domain (whatever a politician’s personal policy goals are) can inhibit their ability to make decisions in the sort of unbiased, unmotivated way we expect good leaders to follow. Parochialism is an important factor in these decisions too. We ask congresspeople to make decisions whose consequences may not fall on them or their constituents. As with the Exxon example, it’s all gain, no pain, so-to-speak. And yet our process of having local elections incentivizes congresspeople to act only in that local interest, not in the general interest. Importantly, then, the fault isn’t so much on the congresspeople for individual acts of deferring to the will of lobbyists. Rather, the fault lies on those who created and who perpetuate the institutions which provide the incentives for these acts.

The question of blame often poisons discussions about lobbying. Some place blame on corporations for lobbying, but the businesses leaders who make decisions are beholden to their shareholders. Others blame the congresspeople and think of them as greedy and self-serving when they listen to lobbyists. But as we’ve discussed, this need not be true either. The blame is very diffuse. It’s the fault of disinterested 401k holders. It’s the fault of parochial constituents who will vote out a congressperson who puts the national interest ahead of the local one. Some blame lies on congresspeople and business leaders, but their decisions are a reflection of competing obligations. A corporate executive may recognize the harm of lobbying, but still want to provide for his family and lobbying is a fantastically effective way to help the business which pays his salary. A congressperson, too, would be naive to think lobbying did not corrupt his decision-making, but he wants to provide for his constituents and without corporate money it’s very difficult to win elections. I want to be clear: some corporate employees and some congresspeople are corrupt. They act to benefit one another, not the citizenry. However, even if every executive and every congressperson acted in good faith, lobbying would still exert a corrupting influence. Such is the nature of a corrupt system. As the saying goes, don’t hate the players, hate the game.

Citizens United

So, like we’ve concluded in many other pieces, the system itself is to blame. How did it get this way? I mentioned before how the Gilded Age was the high point for corruption in politics. And one would hope that every new day would be a lower and lower point as we continually reform the system for the better. But of course, the news isn’t that cheerful. The amount spent on Congressional elections increased by 600 percent from 1980 to 2012 while the amount spent on presidential elections has increased by over 1,200 percent in the same period, adjusted for inflation. Now those of you who would blame this increase on just ordinary population growth, consider this: the population has only grown 25 percent from about 247 million in 1980 to about 308 million in 2010, when the most recent census was conducted.

There is an enormous, complex history to the state of campaign finance and lobbying regulation. The battle between regulators and those who would seek to influence elections with money have raged since near the beginning. However, in this section we are going to focus only on a single piece of this history. It’s a Supreme Court decision that you have probably heard of. It was controversial from the very beginning when the court voted 5-4, sharply along ideological lines, to remove all limits on independent expenditures by corporations toward political campaigns. This was, of course, the Citizens United vs. FEC decision, Citizens United for short.

Wow, that sounds boring. It’s hard to imagine something as boring-sounding as “independent expenditures by corporations toward political campaigns” was a “controversial” decision. I suppose we should begin then by considering what these expenditures are. After that, we can consider why there were limits on them and how the removal of those limits has affected our elections. In doing so, we will predominantly focus on the arguments made by Justices on the Supreme Court since both sides made arguments for their side not based just on the law, but on the morals and values they believed to underpin the laws. In other words, this was a decision based on conflicting interpretations not on the letter but on the spirit of the law.

Also important to remember is that this was an example of judicial activism by the conservative bloc of the court. Long-standing precedent was overturned. Chief Justice Roberts compared the decision to the overturning of Plessy v. Ferguson with Brown v. Board of Education of Topeka, saying that, “stare decisis,” that is, the idea that precedent should be left alone, is not an “inexorable command,” and that “If it were, segregation would be legal.” He also lists a few other instances of precedent being overturned. However, Brown v. Board was a unanimous decision, another he mentions was decided 7-1 and only one was contentiously decided 5-4 along ideological lines like Citizens United. Thus, there is some reason to be suspicious of the esteemed Chief Justice Roberts’ claim. That being said, we will be charitable to the majority’s arguments and will get to them in due time. But first, let’s begin with trying to understand what Citizens United actually did before we consider whether what it did was justified.

Suppose you are a wealthy individual. It’s 2007 and it’s time to elect the president. You’re not a big fan of that Senator from Illinois but you like that maverick from Arizona. He really seems to get you. So, you want to help him get elected. This is prior to the Citizens United decision in 2010, so your options are somewhat limited. You can donate to what is called a PAC (Political Action Committee), 527 group (its name coming from the section of the tax code under which it is regulated), and directly to a campaign.

There are benefits and drawbacks to each of these. You can only donate $2,300 directly per candidate (feel free to donate to as many candidates for Congress as you want), but the campaign can then use that money to “expressly advocate” for your preferred candidate. Express advocacy includes statements like “Vote Sheev for Supreme Chancellor” or “Defeat Macbeth at the ballot box or you’ll be next!” This is in contrast to “issue” advocacy which can only provide information about a candidate. It cannot direct those who are exposed to it to act in one way or another. PACs are also allowed to coordinate with candidate’s campaigns to maximize the effectiveness of their advocacy.

If you’ve still got some money left, you might try donating to a 527 organization. Technically, PACs are 527s too, but the term is usually used to refer to organizations that do not engage in express advocacy. 527s’ issue advocacy simply provides “information,” either about a general issue (“abortion is murder and here’s why…”) that might be a point of contention during the election, or about a candidate. For example, you might run an ad that says “Abortion is murder and Democratic candidate Soranus is a big fan! But Republican candidate Severus wants to make it strictly illegal!” They have to stop short of actually saying “Vote Severus!” This can still be very effective, and prior to the advent of Super PACs, it was the most popular way to make a big difference in elections. 527s are also not allowed to coordinate with candidates.

You can make some other donations, mainly to party committees on the local, state, and national level, and the limits on these are much higher. But that’s not going to be as effective at getting that lovable Vietnam veteran into the Oval Office. If you happen to run a business, your corporation will unfortunately not be able to contribute to any campaign or 527 group (you can actually thank McCain for that), but some of your employees can contribute to PACs associated with your corporation which can contribute to campaigns. However, there is a fairly strict limit on the total contributions these PACs can make. Whether your business has one PAC or ten, the limit is the same.

It didn’t work out. Maybe if you had just been able to donate more and McCain could have won. Fortunately, it’s 2012 and you have another chance with the charming bloke from Maine. And now, thanks to the Citizens United decision, you can do a lot more. First of all, PACs have been superseded by super PACs. These PACs can engage in express advocacy and can accept unlimited donations from both individuals and corporations. You read that right: that’s not from employees contributing to a corporation-associated PAC. Corporations can contribute straight from their treasuries. The last remaining limit is that super PACs cannot coordinate directly with candidates’ campaigns. But, as would be confirmed in 2016, the FEC doesn’t much care to stop this communication and any attempt to stop it would have to go up against the First Amendment’s free speech protections.

Plus, if some of your more liberal friends were offended by your large campaign contributions toward McCain last time, just find or start a non-profit corporation, give your donations to it (your business can do this too!) and have that non-profit donate to a super PAC supporting Romney. Normally, any individual contributions over $200 and all contributions from organizations (corporations, super PACs, etc.) have to be publicly disclosed. However, non-profits aren’t legally obligated to reveal their donors to the public so no one but the government will know you or your company contributed. (Post-2018, these non-profits aren’t required to tell even the government). So, the super PAC will have to reveal that that non-profit made a donation but it’s completely untraceable to you! You can just tell your friends you’re not that interested in politics anymore. Coincidentally this also allows foreign nationals to bypass laws that ban them from contributing to US political campaigns.

That last sort of contribution is what is frequently referred to as “dark money” since it’s ultimately untraceable and oftentimes, non-profit corporations, “ghost companies,” are formed for the express purpose of hiding contributions. And these non-profits spend a lot of anonymous donations: about $1 billion since 2010. That’s part of a total of $3 billion spent by super PACs in general since 2010. This is the result of that boring little decision to remove limits on independent expenditures by corporations toward political campaigns.

So why did five Supreme Court Justices vote to allow all this to happen? Well, there are basically two arguments they made, one legal, one moral. We’ll cover these in turn. The legal argument is simple: as Justice Antonin Scalia writes about the 1st Amendment, “The Amendment is written in terms of ‘speech,’ not speakers.” In particular, the Freedom of the Press clause, they argued, protected the free speech of associations of speakers.

“Now wait,” you might be thinking, “this is about money, not speech.” However, it has been long recognized by the Court that a right to spend money is intimately connected with the right to speech and communication more broadly. If you want to have any sort of communication except literal spoken speech, you require a medium and that medium usually costs money. If you want to write a letter, that takes pen and paper. Speaking on the radio requires a radio station. Running a TV ad requires recording equipment. Money is speech. Rather than denying that, the Court has historically judged that certain types of this kind of “speech” are worth limiting. The typical standard has been that the influence of money is worth limiting when it is used for the purpose of corrupting candidates and elected officials or when its influence leads to the appearance by the public of corruption. It is in the interest of the government that the populace not believe their votes are worthless and that money rules when it comes to elections.

So Scalia is undoubtedly right about the First Amendment. And, strictly speaking, he’s right to say it’s difficult to interpret the First Amendment as limiting any sort of speech. But of course, all sorts of speech are restricted. The Court has found grounds to limit speech despite the lack of explicit restrictions in the text of the amendment itself. The more important argument, then, is the moral one.

The moral argument the conservative majority made has two parts: first, that the ability of businesses, especially small businesses, to engage in free political speech is important; and second, that independent expenditures never give rise to the sort of quid pro quo corruption that warrants limiting said political speech. That second piece, by the way, implies that only quid pro quo corruption warrants censorship.

In defense of that first claim, the majority utilized a classically liberal claim: “that there is no such thing as too much speech.” This idea goes all the way back at least to John Stuart Mill in the 1800s. The idea, familiar to us all, is that in the “marketplace of ideas,” the expression and discussion of all ideas is important. According to our power of reason, the true ideas will stick in our minds more readily than the false ones. And each new exposure to false ideas will only strengthen in us the confidence we have of the truth. It’s a noble idea, but one that has failed every test of human psychology in the modern era.

For one, people have a confirmation bias, which leads them not to preference true ideas over false ones, but ideas they have over new ideas and new evidence they don’t agree with. People also accept and hold beliefs based on a heuristics which leads to an availability cascade where claims reiterated frequently enough in the public sphere are more readily accepted, even when demonstrably false. This holds especially true when the claims made fall outside of the listener’s area of expertise. If you don’t have much knowledge one way or the other concerning, say, climate change, and you haven’t done any research on the topic, but you more often hear that it’s fake than that it’s true, you will probably think it is fake. From this comes the famous saying, attributed to Nazi Joseph Goebbels, “Repeat a lie often enough and it becomes the truth.” The majority would have it that most political speech by corporations is meant to spread ideas in good faith. The more cynically minded, however, will readily accept that corporations are acting right in line with Goebbels. Indeed, Justice Stevens echoes this sentiment in his dissent:

“If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.”

In fact, this same practice has been applied to the validity of the Citizens United decision itself with many politicians who support it denouncing all opposition as being opposed to “free speech.” Senate Majority Leader McConnell commented on the decision saying that it constituted “an important step in the direction of restoring the First Amendment rights of these groups.” Importantly, he never specified that those groups are corporations. And, of course, being against free speech makes you un-American and renders your arguments invalid.

The second moral argument that the majority relied on is that there is corruption, or the appearance of corruption, damaging to the electoral process when there are or appear to be quid pro quo agreements between donors and candidates. Fortunately, since this is a question of appearances, we can rely on polls of Americans. We can ask Americans if they think the sorts of donations the Citizens United decision would allow would corrupt the electoral process. And in fact, in Justice Stevens’ dissent, he cites such a poll, writing that:

“a large majority of Americans (80%) are of the view that corporations and other organizations that engage in electioneering communications, which benefit specific elected officials, receive special consideration from those officials when matters arise that affect these corporations and organizations.”

And we can confirm this with more recent polling that suggest more than three-quarters of Americans, across both parties, want the Citizens United decision overturned.

Now there remain serious questions: perhaps the standard concerning the “appearance” of corruption should be thrown out. Shouldn’t it matter more whether there is actual corruption? And, as we have discussed in many previous pieces, unfortunate outcomes may be the result of a rational, morally justifiable act. The main role of the Supreme Court, many people agree, is not to exact their or any values on the law. Rather, their role is merely to interpret and apply the law. It may very well be that the conservative majority got this case right, that the Constitution really cannot allow limits on corporate independent expenditures. In obeying their duty, they may have enacted a terrible consequence upon the nation.

And here comes the classic question of civil disobedience: if the laws are unjust, should they be followed? Perhaps the Supreme Court is obligated to do what’s best for the nation, regardless of the Constitution or past laws. It’s a radical view but one that follows fairly naturally from a broad conception of civil disobedience. And according to one poll, most people think that the Supreme Court should at least “interpret the Constitution based upon changes in society, technology, and the U.S. role in the world” instead of allowing “ONLY what’s exactly spelled out in the Constitution.” The originalism of Scalia, it turns out, isn’t so popular.

Citizens United was a very complex case. We have barely scraped the surface of the history behind it and have considered only a few of the ramifications of it that will extend far into the future. Once again, it seems at least possible that a problem with our electoral system (corporate individual expenditures) is not the result of malice or stupidity but rationality and duty. Furthermore, while public opinion is pretty solidly against Citizens United, there are at least some legitimate arguments for it that are based in views of free speech that have shaped our nation’s history and the history of liberal government for centuries. One definite result, however, is this: we should not lose faith in democracy and submit to the idea that corporations run the show. Citizens United, love it or hate it, needs to be discussed despite its complexity. If we are in fact a democracy and not a corporatocracy, the rules around elections ought to be up to us. The Supreme Court certainly holds a great deal of knowledge and wisdom but it does not always accurately reflect the people’s will. If Scalia is even a little bit right about the value of speech, we ought to debate their decision and decide collectively whether to keep it or overturn it and we ought to elect Representatives who believe the same.

Continue to Part IV

 

Ponderous Chains; or, How the Supreme Court Escapes Precedent

photograph of statue on the steps to the US Supreme Court

Like Jacob Marley, the Supreme Court of the United States wears the chains it formed in life; unlike Jacob Marley, the Supreme Court is not always resigned to be strictly bound by these chains. This is a simile. It is also in the form of a fact-to-fact comparison law students are taught to write in their first year. Such legal similes are a devious device by which the Court slips its ponderous chains — but only in its subtler moments. A court will avoid following a rule while leaving it in place by arguing that it doesn’t apply in a particular case — by “distinguishing” a past binding case from one under consideration. At other times the Court casts-off one of its coils altogether like Dorothy Parker’s apocryphal book. It is this less subtle maneuver that commentators worry about when the make-up of the court radically changes, as it has over the last four years. Now with President Donald Trump poised to name a third justice to the Court, after Neil Gorsuch (replacing Antonin Scalia) and Brett Kavaunagh (replacing Anthony Kennedy), the Court is changing more at one time than it has since the presidency of Franklin D. Roosevelt.

The Supreme Court of the United States (“SCOTUS”) has nine justices. That number is not fixed anywhere as a matter of law, but is how many seats there have been since 1869. That makes 5 to 4 four the ratio for majority opinion. Why does that matter? All courts in the US operate on the basis of a principle called stare decisis, which is Latin for “stand by what is decided.” This principle creates a system of judicial precedents that oblige “lower” courts to rule in a manner consistent with “higher” courts, and creates a strong presumption that a given court will decide in a manner with its own past decisions. For example, decisions of the Supreme Court of Pennsylvania bind the intermediate appeal courts of that state, as well as all of the state trial courts. The decisions of the 3rd Circuit Court of Appeals bind the Federal District Courts of Pennsylvania, New Jersey, Delaware, and the Virgin Islands. And of course the decisions of the SCOTUS bind all other courts: it is the “highest court in the land,” and therefore all other courts are lower with respect to it.

A majority opinion is required for a decision to be binding. Or, more precisely, a single rationale (implicitly) approved by at least five justices is required to bind lower courts. This rule, the “Marks Rule,” was promulgated in Marks v. United States, where the court was primarily concerned with deciding due process issues about the retroactive effect of binding decisions made while other cases are in the process of adjudication. If there is no common rule or rationale embodied by the collective opinions of the justices, then their opinions are merely persuasive rather than binding. When the SCOTUS does issue a majority opinion, in addition to binding lower courts, it also creates a precedent that it will generally hold itself to. Reading a SCOTUS opinion, you will see the justices often refer to past Court decisions as reasons for their decision — sometimes with open distaste. For example, in Grable & Sons Metal Products v. Darue Engineering & Manufacturing, Justice Clarence Thomas invited an opportunity to overrule Court precedent concerning federal court jurisdiction in his opinion concurring with an unanimous court. That is, in the same breath he indicated both “this is the rule” and “I would like to obliterate this rule.” Recently, Thomas also indicated that he would entertain cases aimed at overturning the qualified immunity rule.

Why would a Justice or the Court invite the opportunity to hear cases in order to overturn precedent rather than simply doing it? No court can just issue any decision on any matter it wants to apropos of nothing. There are complicated matters concerning which court (“venue“) can hear which claims (“subject matter jurisdiction“) over which people (“personal jurisdiction“), all of which haunt the sleep of law students. Further, courts usually cannot decide any matters that are not explicitly raised by parties to a legal proceeding: they cannot issue rulings on their own initiative, or “sua sponte.” Finally, the supreme courts of the various states and the United States itself are not generally obliged to hear any particular case. Instead these courts exercise their discretion, guided by their own procedural rules, when determining what cases to hear.

Now the anxiety of liberal Court-watchers becomes clear. With Amy Coney Barrett’s confirmation to the seat made empty by Justice Ruth Bader Ginsberg’s death, the balance of the Court would shift to a clear conservative majority. The conservative bench would comprise Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas, and Chief Justice Roberts, while the liberal bench would have only Justices Sotamayor, Kagan, and Breyer. In light of this composition, people eager to overturn decisions in disfavor with conservatives (for example, Roe v. Wade) would attempt to obtain review for as many cases that could present an opportunity for the Court to overturn past precedent. Conservative members of the Court might even encourage that in their opinions on related matters. There would then be a new precedent, binding on all lower courts, until a time when a later Court with a different composition might decide to change its mind again. However, as Justices serve until they die, retire, or are removed pursuant to impeachment, it takes a long time for the composition of the court to evolve “naturally.”

In light of the Republicans blocking Obama nominee Merrick Garland during an presidential election year, and their subsequent rush to appoint Amy Barrett in the last few weeks prior to a presidential election, many urge an “artificial” alteration of the Court’s composition. The alternative, increasing the number of seats on the court (i.e., “court packing“), was openly discussed by Democratic presidential candidates Pete Buttgieg, Amy Klobuchar, Cory Booker, and current Democratic Vice-Presidential candidate Kamala Harris. However, that option requires Congressional cooperation and popular support and is likely to create pushback. In all likelihood, Democrats will have to wait a long time to appoint a new Justice to the court, even if Joe Biden wins the 2020 election for President of the United States.

Considered Position: Flawed Democracy – Minority Rights

image of red and blue cells making a map of the US

This piece is part of a Considered Position series that reflects on the United States’ claim to being a “flawed democracy.” To see the earlier segments, start here.

Minority Rights

Another area where people often disagree about the nature of democracy is when it comes to minority rights. The Founding Fathers feared mob rule, the “tyranny of the majority,” almost as much as they did actual tyranny by a single despot or monarch. The Founding Fathers were classically educated; many learned Latin and Greek and were inspired by the attitudes of Ancient Greece and Rome. Both cultures used democracy but held cautious attitudes toward it. Plato, for one, heavily critiqued democracy. And the Roman Republic was highly aristocratic. They had a bicameral legislature, one house of which was wholly composed of patricians, the upper class, and one of plebians, the lower class. This was the inspiration for the US system of a Senate elected by State governments and a House popularly elected. In both cases, the government was constructed to limit the potential of mob rule.

Today, the government is critiqued from both sides. On the one hand, there are a number of ways in which minority voices are oppressed in politics. On the other, many people worry that certain protections of political minorities give those minorities undue power. Once again, people agree that minority rights should be protected, but disagree about which minorities and for what reasons.

Before jumping into concrete cases, it will be helpful to consider the different uses of the word “minority” which might otherwise cause confusion. The word “minority” can be used in two senses. A “minority” group can be one that holds the minority of political power. Or it can be a group that represents a minority of the population. Sometimes a group is a minority in both senses, but not always. Women, for example, prior to the 19th Amendment, were in the majority (as they remain today) but had no political power. On the other hand, the ultra-rich compose a tiny minority of the population and yet retain, if not a majority of political power, at least a great deal more than they would have given their share of the population. In a proper democracy, these two definitions would be inseparable. If “one person, one vote” is the principle that governs the allotment of political power, they would have to be. But, as we will see, this is not the case in our democracy.

The Electoral College

With that being said, let us consider one of the most frequently debated institutions in American government, the Electoral College. First, we’ll need to consider what exactly it is, how it was meant to work, and how it has worked in practice. Only then can we consider its value as a political institution and whether we ought to keep it.

The Electoral College is the system by which the United States President is elected. It is also an actual group of people who cast votes for the President and Vice President. This group of people is composed of “electors.” Each state sends a number of electors equal to the number of Congressional representatives they have. This is the number of Senators (always two) plus the number of Representatives (anywhere from one in Alaska to 53 in California). And, of course, DC sends as many electors as does the least populous state, as mentioned before.

Now you may be familiar with the idea that we vote to elect the President. However, this doesn’t have to be the case, and in fact wasn’t the case in some states until the mid-nineteenth century. Most states until 1812 simply had their legislatures appoint electors. State governments have full discretion in determining what electors they send and unless required by state law (as was recently decided by the Supreme Court), electors can vote for whichever candidate they want. A state could legally require their electors to vote in accordance with a coin flip.

While this may sound silly, this system did have a purpose when it was created. Like much of the Constitution, the Electoral College was the result of compromise. People on one side wanted the president to be appointed by the legislature. People on the other side wanted the president to be elected by the people directly. The people who supported the appointment of the president believed that, due to the difficulty in communicating across the country, and so due to how little each voter would know about the candidates, it would be foolish to have the people directly elect the president. It made much more sense for them to elect locals, about whom they would know a great deal more, as representatives. Those elected representatives could then travel, meet the candidates, learn more about them, and vote on the behalf of their constituents.

This purpose was retained in the Electoral College. These electors were free to cast their votes however they wished as it was assumed they might be more familiar with the candidates than the people who had elected them. Nowadays, electors aren’t so free. There are 33 states which require electors to vote in accordance with the state’s popular vote. This is for good reason: people no longer lack access to information that only an elector might be privy to.

Like I said, this system had a purpose when it was created. And there was another purpose the Electoral College had when it was created that no longer holds much weight: the Electoral College increased the power of slave states relative to free ones. How? Well, the number of electors a state gets is based on the number of representatives it has. And that number is based on the population of the state. Except, it hasn’t always been that way. At the time, slaves were not considered people, but property. Slave-owning states worried that they would have diminished political power relative to the states with more free people. So they demanded slaves be counted as people only in determining the population of the state. This was a great hypocrisy and northerners refused. Ultimately, the three-fifths compromise was developed. A slave would count as three-fifths of a person for the purposes of calculating population. But of course, they would have zero-fifths of the rights or voting power of any free man. This compromise gave slave-holding states more power in the House and in determining the president. In fact, only one president of the first five was not a slave-holding Virginian.

So then, the Electoral College was founded to account for eighteenth-century difficulties in communicating across large distances and to prop up the institution of slavery. Given that we now have the internet and have abolished slavery (outside of prisons), why haven’t we gotten rid of it? Many people today advocate for the direct popular election of the president. And this change has a great deal of popular support.

The arguments for these are fairly simple: in a democracy, each person deserves an equal vote. Every official given power should be popularly supported. In several instances, the presidential candidate who won the election was not the one who won the Electoral College and thus the presidency. Most recently, Al Gore garnered 0.5 percent more of the popular vote than George Bush in 2000 and Hillary Clinton got 2.1 percent more than Donald Trump. In fact, it is possible to win the Electoral College with only 23 percent of the popular vote, which would be very undemocratic. This, proponents of abolishing the Electoral College say, is unjust. But, there are a number of decent arguments made in support of the Electoral College. It ought not to be dismissed out of hand. We’ll discuss two of these, one bad, and one better.

A common bad argument in favor of the Electoral College is that it protects us from tyranny. It is supposed to be the “last line of defense.” If the people elect a person utterly unfit for office, or a tyrant, the electors will be justified in voting for someone else. This has never happened. In fact, electors changing their votes have never changed an election’s outcome. And, again, many electors today are prohibited from changing their votes. And even if they were not so restricted, one would have to ask, who gets to be an elector? And why should we think that person knows better than us who should be president. Either electors are themselves elected, in which case their interests will likely align with those who would elect the tyrant, or otherwise they are appointed. And if they are appointed, we must ask again, by whom? Ultimately, either the election is wholly based on the popular will or it is not. And if it is not, then unelected people are deciding our government, a proposition wholly opposed to our national values.

A better argument for the Electoral College concerns minority rights. If you remember, by free population, many slave-holding states were smaller than their free counterparts. Thus, it is possible to say “the Electoral College was created to protect the interests of small states from being overridden by larger ones.” And this is a common argument in defense of the Electoral College. While it isn’t really true in the sense that, counting slaves as people, slave states were larger than free ones, we might still think there is some good reason to protect the interests of small states. Protecting small states’ interests is just a special case of the general principle that we ought to protect the interests of minorities. Here I mean groups with minorities of political power. For example, people who cannot walk are a tiny fraction of the population. It would, however, be unjust not to provide accommodations for people with disabilities. To protect the rights of this minority, Americans with Disabilities Act (1990) was enacted. People have no control over whether they have disabilities. And likewise people have little control over where they live — to leave home is to leave one’s family and to risk one’s employment. In any case, it seems obvious that your interests should not be ignored merely because of where you live.

So does the Electoral College protect minority rights? Are small states’ interests protected in a way that they wouldn’t be under a popular election of the president? In one sense they are: small states are less “ignorable” than they would be under a popular electoral system. This is because even the smallest state has at least three electoral votes. Those 3 votes are a greater share than the total (538) than their population would be compared to the total population. For example, Wyoming has a population of around 580,000, 0.17% of the overall population, but its 3 electoral votes comprise 0.56% of the total. Still, 0.56% isn’t much better than 0.17%. And, as it turns out, small states like Wyoming are totally ignored by politicians’ campaigns even now. Actually, most states, big and small, are totally ignored by politicians’ campaigns. Since 2008, 80 percent of campaign visits occurred in less than 20 percent of the states. The reason stems from something the Founders failed to consider when drafting the Constitution: partisan politics.

We often use the phrase “partisan politics” to refer to how polarized the political parties are, to the fact that members of the two parties share very little ideologically. But the Founders failed to consider something far more fundamental, the existence of political parties themselves. See, George Washington spent a great deal of his farewell address warning against the development of political parties, saying in particular:

“They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community.”

Unfortunately, parties, and in particular a two-party system, are a natural and even mathematical consequence of “winner-take-all” elections. This system of election is the one we use for all our Congressional elections and the one every state (except Maine and Nebraska) uses for allocating electoral votes in Presidential elections. To understand how a two party system and a winner-take-all system naturally go hand-in-hand, consider the following:

In the 1960s, not everyone was happy about desegregation. A significant number of people wanted strict segregation. Some were okay with looser segregation. And some wanted full desegregation. Suppose these three groups had 40 percent, 30 percent, and 30 percent support and each voted for a presidential candidate that supported their view. If they did so, then the strict segregationists would win and segregation would stay. But if those who wanted some desegregation convinced the ones who wanted total desegregation to vote for their candidate, then that candidate would win. The ones who wanted total desegregation wouldn’t have been completely happy but 60 percent of the people would have been at least somewhat happy when only 40 percent would have been happy had each group voted for their own candidate. And, we end up with only two real candidates being fielded. The same goes no matter how many groups there are; they will always make these sorts of compromises until there are two real parties.

“Okay,” you might ask, “but how does segregation relate back to the Electoral College and minority rights?” Well, as I said, electors are decided by winner-take-all elections. You get the same number of electoral votes if you convince 51 percent of a state’s population or 99 percent. There is no incentive to please everyone. Nonetheless, 51 percent can quickly turn to 49 percent. So Presidential candidates very frequently campaign where the margin of victory is small. These are called “swing states” and it is their interests that override the interests of all other states since they are the only ones pandered to by presidential candidates. Other states get little or more frequently no attention. California has the most electoral votes of any state, 55, and yet not a single post-convention campaign event has been held there by a presidential candidate since at least 2008. This minority of states dominates the majority of states.

The Electoral College also oppresses minority rights within each state. If there are two parties, with one getting 51 percent of the votes and the other getting 49, then the one getting 51 percent gets 100 percent of the electoral votes of that state. What this essentially means is that those 49 percent get no representation in deciding the president. The winning party does not have to compromise at all with the losing one. So really, in each state, large minorities of the population are having their interests overridden by the majorities.

Something important here to remember, though, is that these are problems with the Electoral College as it is. If the winner-take-all system were eliminated, there might be some legitimate defenses of the Electoral College. In fact there are a number of potential alternative voting systems. Under such a new system, small states would remain less ignorable than they would be under a popular vote system due to the Electoral College, politicians might consider their interests more closely due to the substantial political minorities in many states, and politicians might be more incentivized to moderate their positions so as to have wider appeal. As a bonus, third parties could obtain significant minorities of the electoral vote, encouraging politicians in the main parties to pay more attention to their interests (because, again the overall presidential election is a winner-take all system given there is only one president so a two-party system will still dominate).

One last point to consider is why people actually defend or oppose the Electoral College. Usually we think that people make decisions based on reasons. That is, they see reasons and then make decisions. But often people make decisions and then come up with reasons to justify their decision after the fact. Or, they are biased in judging reason by their initial preference. This is called motivated reasoning. The sorts of bad defenses of the Electoral College I have considered above seem to fall into this camp. From polls that have been conducted, the actual reason many people support the Electoral College seems much simpler: it seems to make their candidates win more.

Republicans, George Bush and Donald Trump, have won the last two times the Electoral College has disagreed with the popular vote. And after 2016 when Trump was elected, Republicans’ support for the Electoral College skyrocketed. At the same time, of course, Democratic opposition to it also greatly increased as the same poll shows. People, it seems, will preference their political “team” over their actual beliefs about democracy. Whether the Electoral College is more bane or blessing to democracy is an arguable point. But that argument should be one that precedes forming a view, not one that serves to justify it. You might ask yourself “Would I still support/oppose the Electoral College if it meant my party would lose more often, if it meant the policies I supported got enacted less frequently?” In answering this, you might come to understand whether you care more about rights and duties a certain decision respects or about the consequences that decision causes.

Gerrymandering

We have spent a great deal of time talking about presidential elections but much of the political power does not rest with the president. The legislature, Congress, is meant to serve as a check to the president’s power. Unfortunately, there are about as many problems with Congressional elections as there are with presidential elections. The most significant of these is probably gerrymandering. What we do about gerrymandering will be informed partially by how we think we can best protect minority rights. However, it will be equally important to consider whether we (and more importantly the politicians who represent us) value consequences favorable to us or respect for the rights of those besides ourselves more highly.

To discuss gerrymandering, we should first be clear on what gerrymandering is. Generally, states have more than one House Representative. And, since House Representatives are meant to represent the interests of local areas, each representative is elected from a Congressional district. Only people in that district get to vote for that district’s representative.

But, the question arises: how do we decide where the borders of each district are? Well, the first rule governing districts is that they must have at least 30,000 people in them. This rule comes straight from the Constitution. However, in practice districts all have between 500 thousand and 1 million people. That is because, as we will discuss in more depth later, the number of districts is capped at 435 and the population of the US has grown immensely since the Constitution was written. The second rule comes from the 14th amendment which guarantees each citizen “equal protections of the laws.” The Supreme Court in Wesberry v. Sanders (1964) ruled that this clause requires districts in the same state to be as close to equal in size as is “practicable.” The last rule is one the Supreme Court ruled on more recently, in Miller v. Johnson (1995): race cannot be “overriding, predominant force” in the redistricting process. Even with these rules, however, borders can be drawn in very different ways. So long as they follow these rules, state governments otherwise have total discretion in drawing Congressional district borders.

Gerrymandering is the practice of one political party in control of a state government drawing Congressional district borders such that they are more likely to remain in power in future elections. The word itself comes from an actual instance of gerrymandering, though this one was for a state-level senate: in 1812 in Massachusetts, Democratic-Republican Governor Elbridge Gerry approved a new state senate district map, biased in favor of his own party, that was shaped like a salamander. Thus, “Gerry” plus “-mander” became “gerrymander.” Gerry is remembered today because his plan worked. Many more Democratic-Republican state senators were elected even though they weren’t any more popular. So began a long history of politically-biased district maps.

Gerrymandering based on political party is very common nowadays in both Republican and Democratic states. And a vast majority of Americans of both parties agree that it should be stopped. Nonetheless, individual politicians are incentivized to create districts that will allow them to safely stay in office. So, outside of a referendum like they had in Ohio, it is difficult to stop the state government from conducting partisan gerrymandering. Unfortunately, the Supreme Court recently declined to make any restriction on partisan gerrymandering.

How do politicians defend gerrymandering when their constituencies disapprove of it? Well, as David Lewis, a Republican member of the redistricting committee in North Carolina says, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Assuredly, Democrats in power, such as in Maryland, would say much the same. And even if you are opposed to partisan gerrymandering in theory, since it is unfair, why would you act against what you believe to the best interest of the nation? This same question was raised before in our discussion of statehood for DC and Puerto Rico. A serious belief in democracy requires a great deal of intellectual humility: it requires you to assume that you don’t know best and that only collectively will we best approximate the right course of action. People who act in opposition to democracy may also be acting in what they believe to be the best interest of the country.

Of course, there are some better reasons for certain kinds of gerrymandering. The best kind of gerrymandering results in representation for a minority group who otherwise would have none. Consider the following: if a state has ten districts and a population that is 90 percent white and 10 percent Black, is it more just to draw district borders such that each district has the same 90/10 demographics as the state as a whole? As we discussed before, under the current winner-takes-all system of Congressional elections this would result in the election of 10 Representatives whose interests would be aligned almost entirely with the majority. Alternatively, should one district be gerrymandered so that it is majority Black, giving the Black minority the chance to have a Representative whose views align with theirs? In this case, gerrymandering leads to better representation for minorities. In fact, this is roughly the argument Supreme Court Justice Ruth Bader Ginsburg made in her dissent to Miller v. Johnson. Racial minorities often share a number of aims, beliefs, and convictions, such that they comprise a “community of interest.” There are also many kinds of non-racial communities of interest, and it might be beneficial to gerrymander districts such that these minority communities are not also always political minorities — so that they do not have their rights to representation continually abridged.

Given the enormous complexity of drawing districts and the myriad political and moral concerns that must be considered, stopping partisan gerrymandering may seem hopeless. And, indeed, it is very difficult to fix. However, some states have tried using independent commissions to draw district maps, and this has worked to make districts more competitive. Making districts competitive is important because when politicians are at risk of losing a future election, they are more likely to pay attention to their constituencies’ changing interests. Others have sought more fundamental changes to the system of electing Representatives. One popular alternative to the present system is “mixed-member proportional representation.” Under this system, voters cast two votes, one for their local constituency, and one for a party “at-large.” This way, communities of interest are respected, but the total number of Representatives from each party is always proportional to the votes cast for that party.

The biggest difficulty in stopping partisan gerrymandering is getting state government politicians, who benefit from gerrymandering, to act against their own self-interest in order to change it. People in some states can petition for a referendum and enact change that way, but the laws around referenda are varied. Even once reform is possible, however, we will have to consider the best way to assure minorities and communities of interest are adequately represented. And, we will have to be honest with ourselves about whether we care more about fairness or about getting political change that we want, even if the means of achieving it are unfair.

Congressional District Sizes

Of course, gerrymandering isn’t the only issue with Congressional elections. In fact, while gerrymandering has garnered a great deal of public attention, its harm to our democratic system pales in comparison to something that sounds most banal: Congressional district sizes.

As I mentioned before, Congressional districts have a few restrictions on their sizes. They must be larger than 30,000 people. And, they must be nearly equal in size to all of the other districts in the same state. But, beyond these Constitutional restrictions, the size of districts is mainly limited by how many districts there are.

For example, because every state must have at least one Representative, and because of the formula Congress uses to apportion the limited number of House seats, districts can have as few as around 500,000 (in Rhode Island) to as many as around 1,000,000 (in Montana). The baseline problem here is that this means a voter in Montana has half the representation, and thus half the power to enact change, that a voter in Rhode Island has. It seems highly undemocratic that some voters get twice the power of others for no other reason than where they live. And, the districts with the least per capita voting power are predominantly rural and western. Of course, the disproportionately large power of small, western, rural states in the Senate may ultimately outweigh this injustice. But, as is often said, two wrongs don’t make a right.

Even disregarding this problem of district sizes, there remains another crisis of representation. In talking about gerrymandering, we considered the importance of communities of interest. It seems beneficial to minority rights broadly if these minority communities enjoy some representation, even if that representation is much less than is afforded to the majority. They, at least, should not be ignorable. The trouble is that it’s very difficult, if not impossible, to create a single community of interest that comprises between 500,000 and 1,000,000 people. You can easily find five people who share pretty much all the same views who live fairly close to each other. And you can probably find tens of thousands of people living near one another who share many of the same views and concerns. All the people near a state-long oil pipeline might be concerned about oil spills, for example.

However, few things can be said to adequately unite many hundreds of thousands of people together sufficiently to call them a “community of interest.” We mentioned before how racial communities are sometimes grouped together this way. And, while racial groups often have some shared concerns (about racism, for example), interests can vary widely within them. Intersectionality, the recognition that people have multiple intersecting identities, means that people’s interests are unlikely to be solely associated with any one identity. And the odds of large groups sharing many intersecting identities decrease the more identities you hope that they share.

I mentioned before in our discussion of gerrymandering that the winner-takes-all system prevents political minorities from having any representation. And I suggested the mixed-member proportional representation system as a potential cure. However, what if I told you that this problem could be fixed with a change to the Constitution that was actually on the Bill of Rights itself and the only part of the proposed Constitution on which George Washington elected to speak?

First consider this question: what is the first amendment to the Constitutions and how many amendments are on the Bill of Rights? Typically, the answers given would be “the one about freedom of speech, press, religion, etc.” and “ten.” However, the original Bill of Rights passed by Congress in 1789 had twelve amendments, not ten. And, the first of these was not what we typically think: rather, believe it or not, the amendment placed first before all the rest was about Congressional district sizes. (For those who are curious, the real second amendment was forgotten about until the 1980s when it was rediscovered by an undergraduate student who researched it for a paper on which he got a C. He campaigned for its passing which occurred in 1992 when it became the 27th amendment. It concerns the prevention of Congressmen raising their own pay without an intervening election.)

This amendment, titled “Article the first” on the original document, has the following text:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

The original Constitution gave the original 13 states Representatives in a way only vaguely proportional to their populations. After the next census, this amendment would have Congress allocate 1 Representative per state for every 30,000 people. Once a total of 100 Representatives were allocated (with a population of 3 million) new Representatives would be allocated so that each state had 1 Representative for every 40,000 people. This would continue until there were 200 Representatives (with a population of 8 million). However, here begins a mystery which had never been explored until the folks at non-profit Thirty-Thousand.org did so.

If the amendment is followed to the letter, a mathematical contradiction arises. From a population of 8 million to 10 million, there are required to be at least 200 representatives but the number also cannot exceed the population divided by 50,000, a number which would range from 160 at a population of 8 million back up to 200 at population 10 million. In short, the minimum number of representatives is greater than the maximum, an illogical contradiction.

The reason this paradox occurs is that unlike the previous several clauses, the final clause uses “more” instead of “less.” The original House-passed version actually did contain “less” while the Senate-passed version differed substantially. A conference committee changed the word “less” to “more” and this was the version ultimately passed by the entire Congress. The circumstances leading to the addition of a mathematical contradiction in Article the First are quite uncertain with at least one lawsuit alleging this difference to a scrivener’s error. And it is also confusing why Congress passed this amendment and 10 states ratified it without anyone becoming aware of the contradiction. Given that Washington himself advocated a maximum district size of 30,000, this amendment only makes sense if we ignore its illogical alteration by the conference committee.

In fact, even though this amendment was never ratified (it missed the cutoff by a single state at the time), Congress more or less acted like it was for a while. The number of Congressional districts increased roughly in line with the population until the 1820s, when the number of Congressional districts plateaued. It then paradoxically shrank in the late antebellum period. The number continued to grow with the population until it was forced to stop by a Congressional act. The 1911 Apportionment Act capped the number of districts and representatives arbitrarily at 435. At this time, the US population was less than 100 million so each district represented roughly 230 thousand people. By 1929, this change was made permanent with the Permanent Apportionment Act. Both the 1911 and 1929 pieces of legislation were contemporaneously criticized. About the former Representative Edgar Crumpacker of Indiana said this:

“If we make the ratio [of persons per Representative] too large the idea of representation becomes attenuated and less definite. The personal interest of the voter in his representative becomes less important to him, and we may lose something of the vital strength of our representative form of government.”

Crumpacker was thinking about the difficulties of creating communities of interest far before the term was thought up. And later on, Representative William B. Bankhead of Alabama called the latter piece of legislation “the abdication and surrender of the vital fundamental powers vested in the Congress of the United States by the Constitution itself.”

So why did this change actually occur? Well, as the previous source indicates the US House failed to reapportion itself in 1920 due to disagreement between urban and rural representatives. Continuing to increase the number of Representatives in line with population would give the rapidly growing cities more power. Obviously, rural representatives would not approve of giving themselves less power. And, many people in general were opposed to giving the cities, which had large non-white and immigrant population, more influence. The United States was still at this point in history very much a white supremacist state.

Furthermore, as in the gerrymandering case, voting for reform requires a Representative to go against their self-interest. With every new Representative, the power of every Representative is diluted. Supposing that each Representative does actually care about at least most of their constituents, voting to increase the number of Representatives would also require Representatives to vote against the interests of those they represent.

This presents a paradox of sorts. The duty of a Representative is to act in the best interest of her constituency. But, Representatives also seem to have a baseline duty to maximize representation for all citizens. Unfortunately, to serve one duty, they must contradict their other duty. And, given that only one of these duties also serves the Representative’s own interests, say, by maintaining her personal influence over the nation, it is obvious which she will follow.

So, again, we are met with the impossible problem of having to convince politicians to give up power for themselves and to limit their chances of enacting policies they think are for the best. And, unlike with gerrymandering, there is no way to begin a referendum to enact change without consideration to the politicians. Thus, it seems unlikely that a pathway exists to stop this system which intrinsically violates minority rights.

Plus, there is at least some legitimate opposition to enacting something like Article the First. If it were passed (with the final “more” changed to “less”), the US House would go from having 435 members to having over 6,000 members. That is a huge number. It would be larger than any other legislature in the world. One bad argument sometimes made is that there simply aren’t enough chairs in the US House building for that many people. Of course, were there to be 6,000 Representatives we might simply have them stay home in their constituencies and vote remotely as has been allowed for the first time recently due to COVID-19. This would prevent legislators from growing detached from their constituencies. However, the argument goes, this would also make it difficult for Representatives to work together on legislation. People could communicate remotely, but as we have seen during the pandemic, it’s just not quite the same.

Another argument against such a drastic increase is that people are already frustrated with having “too much government” and would rather shrink the size of government. This is an appeal to the popular will. Unfortunately, polling does not bear this out. While Congress is generally unpopular, more people support expanding the House than shrinking it, especially when historical context is provided about how each Representative used to represent less than 60,000 people compared to today’s 700,000. Of course, more people support keeping it the same than increasing it or shrinking it; the status quo has its own inertia.

One other argument suggests that a large number of Representatives would increase anonymity and thus corruption. However, others argue oppositely that corruption and lobbying would occur much less frequently due to the increased cost of corrupting the process. See, if some business only needs to buy 10 votes to get the majority of the 435 representatives for their legislation to pass, and each vote costs $100,000 dollars, corrupting the process only costs $1 million. If the cost per legislator remains the same but the number of legislators increases by a factor of 10, say, to at least 4,350, then so will the number of votes they need to buy, and thus the overall cost. Corruption would be much more expensive so it might occur less frequently even though less oversight is given to each individual Representative. More likely, these opposing factors would counteract each other and corruption would remain at the same level it is now.

In a similar vein, gerrymandering may become much harder to do as districts become smaller. Lawyer and political analyst Sean Trende makes this argument in a publication for the University of Virginia’s Center for Politics. He writes:

“Think of it this way: If there are 100 residents in a state with 100 congressional districts, there is no gerrymandering possible. If there are 50 congressional districts, it isn’t impossible, but it is still difficult. If, however, there are only five districts, a legislator will probably be able to draw the lines to cluster a disproportionate number of Republicans in a single district, leaving Democrats overrepresented in the remaining districts.”

Even this argument, however, has to go up against our general intuition that 6,000 people is just too many. This is probably the biggest hurdle to any substantive change to the apportionment process. And, of course, not everyone supports the ratio of one representative to every 50,000 people. Some argue in favor of a number of representatives equal to the cube root of the population. Others use statistics to calculate the number of Representatives that would result in the minimal disparity between population and power. In any case, however, we are just stupefied by tradition. It seems like there have always been 435 Representatives even though there haven’t. And, in fact, only one large nation, India, boasts a legislature with a lower number of Representatives per population. No other OECD nation has a larger ratio of citizens to representatives. Britain, that tyrannical monarchy from which our fledgling democracy broke away, now has nearly double the amount of popularly elected legislators that we have and nearly quadruple the total number of legislators. America, then, is exceptional, but in a very negative way.

America has a minority representation problem. There are a number of ways to fix this, but all of them require significant changes to our electoral system. Whether we eliminate the Electoral College, drastically alter our system of Representative election, greatly increase the total number of Representatives, or simply reform any of these systems, we will have to go up against the force of tradition and government powers that are compelled by legitimate duties and by self-interest to oppose change. Something must be done as the lack of representation for great swathes of the population in our democracy constitutes a crisis. How we deal with that crisis will require a great deal of discussion, particularly about our values and the values we demand our elected leaders hold. The correct approach is quite uncertain. Nonetheless, if we hold the value, central to democracy, that minorities ought not always to be totally dominated by the majority, we must enact some change of some form soon.

Continue to Part III

Is It Right to Hope for a Politician’s Death?

photograph of newspaper stand with various magazines with Trump on the cover

For a wide swath of the U.S. population, the news that President Trump is COVID-19 positive was not exactly met with wailing and gnashing of teeth. Many believe that Trump’s dithering, downplaying, and dismissals are in fact responsible for some non-trivial proportion of the country’s 200,000+ COVID deaths — a fact whose significance will become apparent shortly. That he now has the virus strikes many as a delicious irony, and not a few fondly hope and fervently pray that Trump may speedily pass away. But there are plenty of Trump opponents who find this bloody-mindedness unsavory, perhaps even unethical. Thus, we confront the following ethical issue: is it right to hope for a politician’s death?

There is an important caveat to the discussion that follows, which is that even if hoping for a politician’s death may be justified, that does not mean that we are justified in hoping for their deaths. The distinction has to do with our reasons for hope. While a justification might be available for hoping for a politician’s death, that often isn’t the reason why we actually hope for their death. Instead, the reasons why many people actually hope for politicians’ deaths have to do with revenge or hatred, which is not a sufficient justification for so hoping. In short, you aren’t actually justified in hoping for a politician’s death unless your motives for so hoping match the reasons that actually justify so hoping.

Here is an argument I have seen bandied about on social media. Commonsense morality recognizes circumstances under which killing is morally justified: namely, when it is necessary to save the life of a third-party, and more controversially, when it is deserved. If it is true that Trump’s mismanagement of the coronavirus pandemic has led to thousands of unnecessary deaths, then it might be argued that his death is both deserved and necessary for the prevention of many future deaths. But if an act that results in some outcome is morally justified, then the outcome is one that we may permissibly hope for, whether it is produced by an act or by some other cause. Therefore, we may hope for Trump’s death.

One problem with the argument is that Trump’s death is not strictly necessary to prevent future death; there are other ways to remove him from power. Nor is it obvious that Trump’s death is even the best, or the most efficient, means of preventing future death. Trump’s death would have many consequences that we can only dimly foresee, many of them probably not good for disease control and prevention. If the use of lethal force is not necessary, nor even the best or most efficient means of protecting third parties from imminent lethal harm, then its use is arguably unjustified. Furthermore, there may be an intent requirement: it may be impermissible to use lethal force to save innocent lives unless the person who threatens those lives intends, or at least can be reasonably interpreted as intending, to kill. Trump’s sin seems more like negligence than intentional wrongdoing.

We might also question whether Trump’s gross negligence really merits death. Generally speaking, the death penalty is reserved for those who commit intentional crimes, not negligent ones. On the other hand, it could be argued that negligence can be so gross that it does deserve death. Questions of proportionality are difficult to pin down with any precision.

It might also be objected that to hope for something is to view it as a good thing, and that we ought to hope for what is actually good. Furthermore, a person’s death is never a good thing, even if to kill that person would be morally justified. Thus, we should never hope for someone’s death. Here we are taking aim at the premise of the argument that says that if an act results in some morally justified outcome, then the outcome is one that we may permissibly hope for. Not so, says the objector: there are outcomes that are always bad, and so ones we should never hope for, even if it is permissible for us to bring them about.

It seems right to say that we should always hope for what is actually good. And it’s true that death is almost always bad for the person who dies. So, we can agree that Trump’s death would be bad for him. But Trump’s death would, ex hypothesi, also be good for many people. And it is also good if people get what they deserve. We can, therefore, plausibly say that what we hope for in the complex state of affairs that involves Trump’s death is that people will be saved, or that Trump will get what he deserves. Thus, there seems to be no difficulty hoping for Trump’s death even if it is bad for him, if what we are really hoping for are the good consequences of Trump’s death or that Trump gets his just deserts. Hope for these things does not involve hope for what is actually bad.

This point also applies to the slightly different objection that hope involves the anticipation of happiness, but we should never be happy about someone’s death. For example, many people thought the spectacle of crowds rambunctiously celebrating Osama bin Laden’s death was unsavory. One reason this might indeed be unsavory is because it involves taking pleasure in others’ misfortune, which seems like a bad thing, although this would have to be argued for in greater depth. It seems possible, however, to hope for a politician’s death in a way that does not involve taking pleasure in anticipating their misfortune, if the object of hope is either the good consequences that will flow from the politician’s death or that the politician gets what she deserves. Here we come back to the point that in order to be justified in hoping for a politician’s death, our motives must match the reasons that actually justify so hoping. If our hope is based on taking pleasure in anticipated misfortune, it may not be justified; but if it is based on the anticipated goods that either flow from or are realized by the politician’s death, it may be justified.

To conclude, it seems that we can be justified in hoping for a politician’s death under some circumstances, although it is less clear that these circumstances obtain with respect to President Trump. There is no special ethical barrier to hoping for a politician’s death in principle, although in so hoping most of us face the ethical pitfalls of vengeful feeling and sadistic pleasure.