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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.

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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.

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Under Discussion: Voting Best Interests and Democratic Legitimacy

image of hand placing checked ballot in ballot box

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.

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.

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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.

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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.

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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.

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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.

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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.

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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

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Considered Position: Flawed Democracy – Disenfranchisement

photograph of street traffic leading up to US Capitol building

This piece begins a Considered Position series that reflects on the United States’ claim to being a “flawed democracy.” (Part II, Part III, Part IV)

Introduction

2020 is an election year. As a nation, we will talk a lot about the candidates, who they are, what they stand for, and what they plan to do. But how much does that all matter if the elections themselves are broken?

As Americans we pride ourselves on our commitment to democracy. While most nations were still under monarchs, we alone managed to permanently throw off the monarchical yoke. But how democratic are we really? As this series will discuss, our government has earned its designation as a “flawed democracy.”

We will consider numerous problems of enfranchisement, minority rights, and voter participation. We will also consider how all these problems have not necessarily come from malice or stupidity. Unfortunately, it is very easy for many people, all individually rational and good-hearted, to exact great harm on our society and government.

Unlike most writing on politics, this series will not seek primarily to put blame on any group or groups. Rather, we will try to understand the systems that have incentivized people to act in ways contrary to the general interest. As much as we as Americans like to think of ourselves as free, no one is free from the influences society has on us from birth till death in all our actions.

Frequently we will consider these systems and problems through a moral lens. Most political problems and disagreements have their roots in moral disagreements. And, the Prindle Institute for Ethics holds that the only way to become better at resolving moral disagreements is to develop the skills of moral reasoning. Moral reasoning is the practice of considering a moral problem from different perspectives, weighing the different moral factors at stake, and coming to an understanding of the right action or actions to take.

You might want to put on some cheerful music as this discussion of the numerous systemic problems with our electoral system is almost certain to prompt feelings of sadness and hopelessness. Got it playing? Well then, strap in as we first take a look at one of the most obvious problems with our democracy: the fact that millions of US citizens have, like American Revolutionaries once did, no representation in the governing bodies whose laws they must obey.

Disenfranchisement

If you’re a citizen, if you were born in this country, if you are mentally sound, and if you have committed no crimes, then you likely have the right to vote for the president and members of Congress as soon as you turn 18. But it is only likely. It is not guaranteed. In fact, about 4 million Americans who fit all these criteria cannot vote. That’s more people than who live in the five least populous states. So why can these people not vote? Well, they don’t live in US states. Most of them live in US territories and the remaining 700,000 reside in our nation’s capital. Let us consider both of these groups in turn.

Island Territories

Most people know about Puerto Rico. It is part of the US and yet not a state, even though it has more people (3.7 million) than 20 US states. But many do not know that an additional 300,000 people live in Guam, the US Virgin Islands, the Northern Mariana Islands, and American Samoa. American Samoans aren’t even considered citizens, only “American nationals,” though there is a court case pending challenging this classification. The reason these citizens have been denied voting rights goes back to a series of Supreme Court cases and decisions collectively referred to as the “Insular cases.”

These cases, decided in 1901, were rooted in racism and colonialism. The Court ruled that the US could possess these territories without granting their residents full constitutional rights. According to them, “those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought,” and so “the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.” The designation of American Samoans as “nationals” rather than “citizens” reflects the colonial mindset. European nations often used this designation for their own colonial subjects.

Given that colonialism often has the purpose of creating military advantage and extracting economic resources for the colonizers, it makes sense why the US would not want the colonized people to have a vote. But, of course, nowadays that line of reasoning will not convince many people. We recognized now that these people are people. So why, in our “democratic” nations does this demos, Greek for “people,” not get to vote?

It comes down to a matter of constitutional law. According to the Constitution, Senators and House Representatives must be elected by the people of the States. Each state gets 2 Senators and a number of Representatives based on its population. Statehood here is critical. Any of the territories could become a state. However, statehood requires the same approval as do laws when they are passed. Both Houses and the president must agree. This will be difficult to accomplish for any territory that wishes to become a state and it always has been. Some of the most divisive politics of our nation’s history surrounded the admission of various states during the antebellum period. Few slave-holding states would be willing to vote in favor of admitting a free state and vice versa. Thus, the democratic rights of these citizens are dependent on two parties agreeing which, in recent times, agree on little.

It’s a hard sell for Republicans and for good reason: suppose you had power to make change for (what you believed to be) the better. Would you be willing to give up that potential for good just to give the right to vote to some people you know will vote (in what you believe to be) the wrong way? Denying the democratic rights of others, then, is not necessarily irrational and requires no malice towards those you disenfranchise. If you have confidence in your beliefs (which you must to hold them at all), then it makes little sense to give decision-making power to those who hold beliefs opposite yours. The issue comes down to deciding whether to preference your specific political beliefs or your broader political beliefs about the righteousness of a democratic system of government.

And there are some other legitimate worries too. First among these is a worry stemming from democratic values: Puerto Rico and other territories should only be made states if their peoples want to become states and it’s not clear that they do. Puerto Rico has regularly had referenda on statehood but no referendum has ever shown definitive public support for statehood. The latest referendum showed 97 percent of Puerto Ricans supporting statehood. However, there was only 23 percent turnout after the anti-statehood Popular Democratic Party urged people to boycott the vote. Former Governor of Puerto Rico Aníbal Acevedo Vilá, a member of this party, sees a number of economic and cultural problems with gaining statehood.

Another referendum is on the 2020 ballot. So we will soon see if the people of Puerto really agree with Vilá. If Puerto Ricans do not support statehood, it is hard to argue that they should be made one. The stance many politicians take, including current Democratic Presidential nominee Joe Biden, is neither that Puerto Rico should be a state nor that it shouldn’t, but that the people of Puerto Rico should decide for themselves.

There are probably a few Americans who want to keep the historical colonial relationship we have with Puerto Rico and the other island territories, but it’s not clear that this is the reasoning driving most of those who oppose Puerto Rican statehood. On the far opposite side to those who would treat Puerto Rico as a colony are those who advocate its self-determination. The UN Special Committee on Decolonization has long demanded that Puerto Rico be allowed to be either a state or an independent nation. Most colonies, historically, have pursued independence rather than integration with the colonizing state. In fact, in 1914, Puerto Rico’s own elected Congress voted overwhelmingly for independence and was subsequently ignored.

The District of Columbia

So maybe the island territories shouldn’t have the vote. Perhaps they don’t want it. But what about somewhere that does? The District of Columbia is our nation’s capital, but it’s also a city of more than 700,000 people, none of whom have Congressional representation. In fact, while they can vote for President, they can only do so because of an amendment to the Constitution passed in 1961. And though this amendment gives them the right to vote, their votes only count as much as the least populous state, giving them 3 electoral votes, the same number as Alaska, a state with one third the population of DC.

Why didn’t the Founders give them this right in the original Constitution? Well, no one was meant to live there besides some members of the government and some support staff. Furthermore, the Founders worried that having the nation’s capital in a state would allow that state undue influence over the federal government. As James Madison wrote in the Federalist 43, they worried about “a dependence of the members of the general government on the State comprehending the seat of the government” and the possibility of a state bringing “on the national councils an imputation of awe or influence.”

Even so, neither Madison nor any other of the Founders could have predicted the incredible population growth that was to come in the next two centuries. So perhaps their attitudes would have softened. Indeed, one of the slogans of the American Revolution was “taxation without representation” and this same slogan now adorns all the license plates of DC residents. DC residents pay more federal income tax per person than any other state and yet have no representation in Congress. This injustice is compounded by the fact that Congress has total dominion over DC. As part of a federal system, states have powers that Congress and the federal government cannot override. DC has no such power of self-determination. Though they can pass laws and ordinances, they can all be vetoed by Congress.

DC is an interesting case because proponents on both sides, of statehood and of the status quo, claim to be upholding basic principles of democracy. On the one hand, those who support statehood want the most basic form of democracy for DC, the right to vote and the right to self-determination. On the other hand, those who oppose it believe in the concept of “one man, one vote.” They don’t want citizens of DC to have more than their share of power over the federal government. Proponents of statehood see the issue as a dichotomy between giving DC citizens equal rights and leaving them with no rights. Opponents see it differently: either DC has no political power or they have more than other citizens for an arbitrary reason, their geographic location. Seen that way, statehood becomes a much more tangled issue.

However, not all opponents of giving DC’s citizens political rights have such defensible positions. First of all, like Puerto Rico, DC would be likely to bring more Democratic Senators and Representatives to Congress since they vote overwhelmingly for the Democratic Party in presidential elections. In fact, this was the reason Senate Majority Leader Mitch McConnell gave for refusing to consider DC statehood, likening the increase in the number of Democratic Senators incoherently to “full-bore socialism.”

And, again like Puerto Rico, some opposition to DC’s citizens having political rights stems from racism; Black people represent the majority of DC’s population. In fact, a number of the arguments Republican Congressmen presented in the House to oppose DC statehood did not concern the worry of Madison about state influence on the federal government at all. Rather, Republican Congressmen mostly made arguments about the largely Black city being unable to govern itself. They referenced the city’s crime rates, public school quality, and governmental corruption. These might be valid concerns if any other state with the same issues were similarly threatened with disenfranchisement. But, of course, they are not. And in any case, the question remains why any of those factors ought to affect people’s fundamental right to representation in government.

The genuineness of these concerns is also cast into doubt by the fact that they fit into a pattern of racially motivated reasoning used to support the disenfranchisement of DC’s residents. During Reconstruction, John Tyler Morgan, a former Confederate soldier and then US Senator argued that Congress had “to burn down the barn to get rid of the rats…the rats being the negro population and the barn being the government of the District of Columbia.” The legislation he supported — removing power that had been given to the city — was soon passed.

Even if racism does play a part in motivating opponents of DC’s statehood, they may still be right. People can argue the right things for the wrong reasons. Australia for one is also a federated state and also has its capital in a distinct territory, the Australian Capital Territory (ACT), that does not have the same full rights of self-determination as do the other states. We are not a lone oddity in not wanting the people immediately around the capital to have undue power over the federal government. Unlike the US, however, the people of the ACT do have representation in their legislature. At the same time, that representation is very limited and is not proportional to the population. They have more people but fewer representatives than the state of Tasmania. This situation is similar to DC’s limited power in the Electoral College like I mentioned before.

The opposition surrounding DC’s statehood is a tangled mess of racist rhetoric and legitimate concerns that come with a federal style of government. Its supporters and opponents both base their arguments in democratic language. The same goes for Puerto Rico and the other island territories where everyone agrees that what the people say goes, only they disagree on what the people say. Therefore, excepting the racism that underpins some arguments against enfranchisement in both of these areas (and there is a lot of this), the debate is not between those who support democracy and those who don’t. Rather, it is between people with different interpretations of democracy.

Continue to Part II

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Is the U.S. Becoming Less Democratic?

photograph of worn USA flag on pole with clouds behind

What does it mean to be a democracy and is the United States becoming less democratic in nature? With November rapidly approaching, the election has been marred by accusations of voter suppression, worries about Russian interference, claims that the entire election is rigged, and concern that this will be the most litigious election ever. Given this state of affairs, it seems like the democratic process is being undermined. However, the process of voting and democracy are not the same thing; the former is an instrument for enabling the latter. Does the problem go beyond one election?

American philosopher John Dewey understood democracy as a much broader phenomenon. While elections and the machinery of democracy matter, and while the vote of a majority is important, it is more important to consider how the will of a majority is formed or how the public can manifest the desires and preferences that matter to it. As he notes in Democracy and Education, “A democracy is more than a form of government; it is primarily a mode of associated living, of conjoint communicated experience” that when fully realized affects all modes of human association. In The Public and Its Problems, he explains, “From the standpoint of the individual, it consists in having a responsible share according to capacity in forming and directing the activities of the groups to which one belongs…From the standpoint of the groups, it demands liberation of the potentialities of members of a group in harmony with the interest and goods which are common.”

Essentially, democracy allows for individuals to provide input for the direction of the group while the group ensures that each individual within the group can realize their potential in keeping with common interests. It is a method for ensuring that conflicts within a society can be resolved in ways that promote growth and development, “it is the idea of community life itself.” Since these kinds of social interactions go beyond the scope of government, it stands to reason that democracy itself has a larger scope than how a government is selected.

For Dewey, in order for a political democracy to function properly it must allow for the interest of the public to be the supreme guide for government activity to enable the public to achieve its goals. To do this, however, a public must be able to identify itself and its aims. But, the public is prevented from doing this for reasons that are as relevant today (probably more so) as they were for Dewey. Rapid technological and social development means that we are simultaneously able to both affect distant locations, yet often lack a clear sense of the distant consequences of our actions. Lack of public awareness of these consequences means that we must rely on expert administrators.

But, during the age of fake news, COVID conspiracies, and the rise of QAnon, there is disagreement over basic facts. How can a democratic public perceive indirect consequences when they can’t agree on what is happening? One might expect the public to perceive a threat like COVID and assert what it wants, but without a common understanding, the government response has been confused, and significant segments of the public have demonstrated through protest and gathering that they simply aren’t concerned about the indirect consequences they may cause.

COVID-19 has been a global threat, it has caused (at least) almost 200,000 deaths, and it has created an economic crisis, yet many are unwilling to tolerate limited sacrifices such as wearing a mask and social distancing. Given that this has been the response to COVID, how will the public respond to the issue of climate change when the effects become more apparent? How will segments of the public respond when asked to make more significant sacrifices for a problem they may not believe is real?

It is also increasingly evident that tribalism is affecting the machinery of democracy. Partisanship has become an end in itself as a significant number of voters seem to believe that a platform does not matter, political norms (such as over Supreme Court nominations) do not matter, and the traditional stances taken by political parties do not really matter. This may lead to a situation where the Supreme Court, whose legitimacy has already been questioned, seems even less legitimate, just before a very litigious election.

Dewey believes that it is important to distinguish the machinery of democracy (elections, Congress, the Supreme Court) from democracy as a way of life. The form this machinery takes should respond to the needs of the public of the day and should be open to experimental revision. One might be tempted to believe that so long as this machinery can be maintained and revised where necessary there is no threat to democracy. However, Dewey suggests that since the machinery of democracy is merely an instrument for achieving what a democratic public wants, short of a unified public, it is futile to consider what machinery is appropriate. In other words, any potential reforms regarding mail-in voting, the Supreme Court, the Electoral College, and so on will not address the underlying issue without first addressing the fractured democratic public. If the public remains unable to find itself, the government will be less and less able to represent it and that makes the nation less democratic in the long run.

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What Is Voting?

close up photograph of male hand putting vote into a ballot box

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

On August 8th the National Speech and Debate Association released the new high school Lincoln Douglas debate topic for the months of September and October. The new topic is:

“Resolved: In a democracy, voting ought to be compulsory.”

One thing I’ve noticed is that whether one thinks voting should be compulsory often depends on what one understands voting to be.

To illustrate, consider the ‘expressive’ view of voting, according to which the reason people vote is not to change policy, but as a way of expressing preferences (like cheering on one’s sports team). Expressive voting is normally presented as a descriptive theory of voting; it is an explanation of why people vote despite Downs paradox — given there is no real chance your vote sways an election, doing almost anything else makes more sense.

But suppose we accepted expressive voting as a prescriptive theory, suppose we thought the point of having elections is to give people the chance to express themselves. In that case you would probably reject compulsory voting.

Much of the expressive value of a vote comes from that fact that people choose to speak. As Ben Saunders puts it “if we grant that there is expressive value in [people] voting . . . it is presumably dependent upon their proper motivations and lost if they vote for the wrong reasons.” If we thought the reason for having the vote is to allow people to express themselves, that would inform our voting laws. It would speak against compulsory voting, and might even speak in favor of other voting reforms.

Expressive voting is a particularly easy-to-follow example, but it’s not a plausible candidate for why we hold elections in the first place. So why should we use majoritarian systems to select policies and leaders?

No doubt there are lots of answers that can be given, but here I want to distinguish two common explanations. First, you might think that voting is a fundamentally competitive activity by which we fairly resolve conflicted interests. Second, you might think that voting is a way by which we incorporate citizens into the legislative process.

On the first view, democracy is like a market, it allows us to make decisions otherwise too complex for any one person to make. An example may help. Suppose a group of friends and I are deciding where we want to go to dinner (we can engage in the fantastic daydream where you can not only be with friends but also go out to eat again). Some want Mexican food and some want Chinese, but we would all rather go to either place together than split up into two groups. Now, given that there is a conflict between our preferences, we need some procedure to resolve this conflict, and one plausible candidate is we should go where the majority of people want to go. After all, by going where the majority of people want, we will treat one another fairly because we will weigh each person’s preference equally. (Of course we might choose not to go where the majority wants every time, perhaps we go where the majority wants a majority of the time and where the minority wants a minority of the time; that too might be fair.) Thus, we decide to vote. By voting, we determine where to get dinner.

But how should I cast my vote. Should I vote for the place I personally prefer, or for the place I think the majority wants to go?

Given my commitment to fairness, I really do think we should go wherever the majority wants. Thus, you might think, I should vote for where I think the majority prefers to go. Except, of course, that ruins the election. Suppose seven out of twelve people want Mexican, but the people who want Chinese have been more vocal and so most of us think that the majority of people prefer Chinese. If we all vote our personal preference, we will reach the answer we all want. In contrast, if we all vote for what we think the right answer is, then we will end up making the wrong choice.

It is not selfish to vote for the restaurant you would personally prefer to eat at. Why not? Because you are not actually saying that is where we should go. In participating in the vote you are saying we should go where the majority pick; in voting you are simply contributing your little bit of information to the collective knowledge pool. Even though my actual deep preference is to go where the majority would prefer. I should not try to vote for where the majority prefer because the whole point is to use the vote to reach that decision (saving us from needing to figure it out ourselves).

This is of course a common view of the role of voting in a democracy. Voting is a way to synthesize preferences across large numbers.

Just like free markets allow us to reach efficient systems which no individual person is capable of reasoning to, so you might think that well designed electoral systems create a disaggregated decision procedure where each person’s pursuit of private interests secures the public good more effectively than an alternative.

(My favorite vision of this view of democracy is articulated in Chapter 2 of Posner and Weyl’s absolutely fabulous book Radical Markets.)

In contrast, there is a second view according to which democracy does not integrate our private preferences into some efficient response to the public good. Rather, democracy itself provides an opportunity for everyone to partially legislate. By voting we act as a citizen, we enter into the general will, and in the process we come to share in the nation’s self-determination and sovereignty.

Viewed this way, voting is actually somewhat like serving on a jury. As District Judge Young argued in 1989, the jury plays a central role in our system of justice because it ties the deliverance of judges to the judicial standards of the citizenry. The jury acts as a representative of the population, and thus embodies the democratic idea that justice should ultimately be placed in the hands of the governed.

Like jury duty, we might think in voting we really are, in a small way, acting as a legislator. We are not registering our preference and then allowing the collective structure to issue its judgement, rather we are each making our own best judgement and deferring to the general consensus when others disagree.

While talking with debaters and reading the academic literature on compulsory voting, I eventually realized that people’s background assumptions about what voting was influenced their thoughts on if it should be compulsory. If I choose not to register my vote for where to go to dinner, I am thereby strengthening the vote of everyone else; I’m making their preference carry a little more weight. In contrast, if I regard voting as me playing my legislative role as citizen, then in declining to vote I’m actually hoisting a greater responsibility on others. I’m failing to provide my own counsel to temper there’s, and so increasing the deliberative burden on them to get the answer right. What you understand voting to be can change in fairly profound ways whether you’re inclined to compulsory voting (for more arguments on the subject see the definitive introduction, namely Brennan and Hill’s Compulsory Voting: For and Against).

Yet, despite these background assumptions being operative, very few people noticed the background disagreement on what a vote is. I myself had firm beliefs on lots of questions about voting, but have only now realized I don’t have a very clear sense of what I understand democratic voting to be.

So how should I understand the vote. I am unsure. If we just cared about producing the greatest social good, I expect something like Posner and Weyl’s quadratic voting system really would be best — it would utilize market principles and wisdom of the crowd to disaggregate decision-making allowing the system as a whole to consider more information than individual voter’s can consider themselves. The election thus is far more than the sum of its parts.

Does this mean I should vote in my self-interest rather than the national interest (just as I should vote where I personally want to get dinner)? Probably not. Perhaps we would make better decisions if everyone voted that way. But most people don’t vote that way. Instead they vote for the candidate or policy they think is best for the nation as a whole. People both self-report to vote in what they regard as the nation’s interest, and voting patterns suggest people don’t just vote in their self-interest (Brennan and Hill 39-40 provide an overview to the literature). Given that that is how others vote, it would seem unfair to vote in your own self-interest (even if we could design an electoral system where voting personal preference is neither unfair nor selfish).

And indeed, on the whole perhaps a system where we all vote for what we think is the national interest is better. While we are probably better at figuring out what is in our own self-interest (and so using external procedures to synthesize those judgements), perhaps the real value of democracy is not in making the best decision but rather in allowing each citizen to share in the sovereign act of legislation. Perhaps better that the ruled are also, in some sense, the rulers rather than outsourcing sovereignty to the opaque judgments of a market system.

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States of Exception

photograph of Chechpoint Charlie memorial site today

Now, many weeks into the rolling global coronavirus outbreaks, large-scale community lockdowns, and broad economic shutdowns; through a plethora of views on what the longer-term outcomes of this situation may be, it is clear that we are living through exceptional times.

Globally, as governments scramble with varying degrees of success to get a hold of the crisis, many countries have declared states of emergency.

Emergency decrees involve assuming certain types of exceptional powers by a government for the duration of a national emergency. Certain rights and civil liberties are curtailed and the protection of certain basic rights is suspended in order to ameliorate the threat.

Currently, in response to the global coronavirus pandemic, roughly one third of the world’s 7.5 billion people are in lockdown or under some form of ‘physical distancing’ restriction on free movement and association. In many areas authorities are enforcing curtailments.

We know from infectious disease experts that these measures are essential – the human population has no immunity to this novel coronavirus and a vaccine or effective treatment may be some way off. The only strategy we have is halting its ability to spread by our behavior.

Nevertheless, the question of how states of emergency are instituted and maintained raises important ethical questions in which the relationship of the state to its citizens is at issue.

Emergency decrees are quite obviously a potential problem in places where authoritarian governments and heads of state are already actively seeking means to extend or consolidate power, and for whom emergency decrees represent an opportunity to legitimize extraordinary levels of state coercion and control.

But even in the most “functional democracies” civil libertarians are counseling us to be vigilant. Even where people recognize the necessity of social distancing and accept the curtailments that states of emergency place them under, it is vitally important to remain conversant with the pressures this puts on our political and social order.

The modern democratic state is founded on ethical principles of rights and personal/individual freedoms. It gains legitimacy from democratic participation of citizens, and is based on a concept of the ‘social contract’ in which there is a tacit agreement by individuals to submit to the sovereign or state. The rule of law offers individual protection of rights and freedoms and endeavors to provide public goods like social harmony.

So the modern democratic state is built on the (ethical) notion that individuals have rights and duties in respect of each other. These rights and duties are mediated by the state, so that individuals have rights and duties in respect of the state under the social contract. The social contract is submission to, and protection under, the rule of law.

The primary function of the state should be to strike a balance between the ethical imperatives of freedom and ‘common good, as the rule of law.

Under what is described by Carl Schmitt in legal theory as a ‘state of exception,’ the sovereign possesses the ability to transcend the rule of law for the public good.

What is the ethical character of the state of exception? States of emergency or states of exception put a certain pressure on the social contract and represent an ethically dubious space.

The particular concerns that civil libertarians have around the use of emergency decrees all converge on this question of what sort of ethical zone a state of exception is, as a zone where the contract has to be temporarily renegotiated and a new balance has to be struck between individual freedom and common good.

There is a general concern that such a balance should err on the side of protecting privacy, freedom of expression, and other basic tenets of liberal democracy.

The important political and ethical question at the center of the state of exception is: how does the exception relate to the norm?

If the norm is the rule of law, then is the state of exception to be inscribed within it, and curtailed by it, or does the state of exception itself stand outside the rule of law?

In the first case, the state of exception is ‘built in’ to the state – so that checks and controls are placed upon exceptional state measures.

But if this is the case, then it is hard to see how it remains exceptional rather than becoming the norm, since building the exception into the state itself leads either to an infinite regress (by seeking exceptions to the exception), or cancels out the exception altogether by constitutionally inscribing the exception into the state as the norm.

In the second case, the state of exception is ‘extra-juridical’ in character – according to the argument that it is not desirable to control executive action in emergency with standard judicial accountability mechanisms.

But here, state power begins to exceed state power, so to speak, and not being subject to juridical order it represents a zone wholly external to the rule of law and the protections and rights and responsibilities that the rule of law enshrines. It is therefore difficult to see how the social contract can be said to hold under such a situation.

If the sovereign’s exceptional decree is not subject to constitutional constraint, the power to decide on the state of exception is therefore the power to decide what should count as a state of exception, potentially maximizing the state’s capacity to function outside the rule of law.

The Italian philosopher, Georgio Agamben, has argued that the state of exception is a zone which is not properly ‘internal’ nor ‘external’ to the state, but represents a kind of political, juridical, and ethical gray area where the distinctions between ‘inside’ and ‘outside’ are blurred, and that it in fact represents a realm of human activity not subject to the rule of law.

While there may not be sufficient evidence for Agamben’s claim that the modern democratic state is in a permanent state of exception, this accompanying claim bears thinking about: The state of exception assumes a fictitious political character in which the vocabulary of war is maintained, to justify recourse to government powers. Agamben believes the state of exception is a fiction sustained through military metaphor.

I do not here claim that the current emergency decrees across the world are fictions, yet it bears noticing that vocabularies of war are certainly sustaining them.

For Agamben, the stakes are high, and the danger is the slow disappearance of meaningful political action, because the attempt to encompass states of exception into the rule of law by legitimizing them represents a recognition of what is outside the law, and prompts sovereign attempts to encompass that very outside within the law. As a legal category, the state of exception therefore extends and completes the law’s empire.

What, then, is the peculiar ethical space of a state of exception, and what does that mean for us?

It is unclear what relation the exception has to normality, and what relation it has to the rule of law. Part of the point is about the possible erosion of civil liberties, but Agamben’s deeper worry about the slow disappearance of meaningful political action suggests that even as we remain committed to the truly monumental global effort to stem the tide of the coronavirus pandemic, we still need to pay attention to the pressures that government control of these measures places on the social contract between the state and its citizens, and to what it means for political discourse.

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Press Freedom in Australia: Democracy, Transparency, and Trust

photograph of two security cameras on side of building

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

This past week on Wednesday morning June 5, the Australian Federal Police raided the headquarters of the ABC, Australia’s national broadcaster and the most trusted media organisation in the country. Files were seized relating to a story from 2017 known as The Afghan Files sourced from leaked documents some of which detailed disturbing allegations of misconduct and criminal activity by Australian Special Forces serving in Afghanistan between 2009 and 2014.

The previous day, Tuesday June 4, the AFP had raided the home of News Corp Journalist Annika Smethurst in connection with a story she published over 12 months ago about the government secretly canvassing a plan to allow the National Signals Directorate to spy on Australians without their knowledge by hacking into critical infrastructure.

These raids have provoked outrage in Australia and beyond. It must be noted that the timing of consecutive raids is extraordinary, given that both reports concerned are well over 12 months old, and are in no way related to one another. The searches have raised concern about press freedom in Australia, with the media union denouncing them as a disturbing attempt to “intimidate” journalism.

Overseas media organisations like the BBC and The New York Times have weighed in on the raids. In a statement on Twitter the BBC said “this police raid against our partners the ABC is an attack on press freedom which we at the BBC find deeply troubling.” And The New York Times reported that Australia May Well be the World’s Most Secretive Democracy. Indeed, the Australian government has become increasingly tenacious in its pursuit of secrecy on a range of fronts, under the ever-broadening umbrella of ‘national security.’

These raids suggest that knowledge, which is merely inconvenient or embarrassing to the Australian government, is being guarded under the cloak of national security. Many observers dispute the characterization of either of these stories as genuine security issues. It is clear, also, that the release of both stories are overwhelmingly in the public interest. As such, it appears the government’s sweeping national security powers are being used to silence and intimidate journalists and their sources.

At the center of the debate is the question of what kind of security matters count as genuine reasons to keep knowledge from the public, and what constitutes an overwhelming public interest. At issue is balancing the principle of the public’s right to know with government’s need for confidentiality to protect other important things like security.

In the era since September 11, in response to the heightened threat of domestic terrorism, Australia has zealously pursued anti-terror, security legislation that has significantly advanced government agency powers. One such law, passed in 2015, requires internet providers and mobile phone networks to store customers’ metadata – the sender, recipient and time of emails and calls. The government argued that the bill was necessary to help Australia’s security services fight domestic terrorism. Those laws were further expanded once again at the end of 2018. There are limited defense provisions for journalists on the basis of public interest, but very weak protections for whistle-blowers who might be sources for investigative journalists.

If ‘national security’ is being used, as many civil liberties advocates worried it would be, to shut down debate and to silence public conversation, this has grave implications for Australia’s democratic integrity. There are deep issues at stake, in terms of the citizens’ ability to trust in the institutions of government, and to be protected against capricious acts by institutions, agencies, and governments. While security and confidentiality are important values, they must not be used by governments to hide things about which we ought to know, and we have to be able to trust that they are not.

It is ostensibly a conflict between the public’s right to know and the government’s right or need to protect confidential information, but that may be a false dichotomy. The interest of the people ought to be the only thing that determines the interest of a properly liberal democratic government –that is its raison d’être and its sole source of legitimacy. That is the ideal of a free democratic society – it is not however true in practice, and the distance between this ideal and reality is the measure of the extent of corruption of the modern democratic state. Corruption thrives on secrets.

Transparency and accountability are two of the most important principles for the functioning of an open, free society. They are both necessary conditions, without which a free, democratic society is not possible. We must be able to trust that, when knowledge which may have profound implications for our society is withheld on security grounds there is a genuine security risk associated with its disclosure. Yet that expectation of trustworthiness appears to have been breached, as the Australian government seeks to enforce its culture of secrecy by employing tactics of intimidation.

Australians have been asked to accept the erosion of many freedoms for the protection of national security. If these raids are not shown to be precipitated by genuine security concerns, the government’s ability to prosecute a case for genuine security needs in the future is compromised.

In a democracy the citizens legitimize the power of the state, and a democratic government has to be accountable to the citizens. A free press is what makes that accountability possible. In general, truth is fundamentally important for the function of an open, healthy democratic society, and we should lean heavily on the side of the public’s right to know and err on the side of transparency.

While some civil liberties advocates have long expressed scepticism about the wisdom of sweeping security laws, especially since Australia, lacking a bill or charter of rights, does not have strong legal protections for freedom of speech protecting the press, more broadly there has been a failure of community and political opposition to critically examine new security laws for how they could be misused; a failure which political commentator Waleed Aly described as a failure of civil reasoning. That failure has occurred in the context of a political culture dominated in Australia by ‘national security’ over other civic freedoms and rights.

The national conversation Australia is now having is about press freedom and its importance for democracy. Those participating need to remain cognizant that at stake is the abstract political and philosophical question of the legitimacy and the limit of state power.

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The Deeper Significance of Women Presidential Candidates

Kamala Harris giving a speech, smiling and speaking into microphones, with people crowded around

Women presidential candidates are appearing in unprecedented numbers for the 2020 election. So far, Elizabeth Warren, Kamala Harris, Kirsten Gillibrand, and Tulsi Gabbard have announced their intentions to run. This surge corresponds to the 2018 midterm elections, which also saw record numbers of women obtaining seats previously held by men. In the wake of the 2016 election, when the presidential confirmation of a Donald Trump won the day over an eminently qualified female candidate, it seems that more women are ready to run and more people are eager to elect them.

 From the stoic prudence of Angela Merkel to the fallen humanitarian Aung San Suu Kyi, it is clear that women are as capable and complex as their male peers in positions of leadership. Women are leaders around the world, though recently they constituted only 6 percent of international leaders compared to male heads of state.  

 American voters believe women score equally or higher than men in terms of valued leadership qualities, but women still lag behind men in positions of power, including their most glaring omission in the role of the US presidency.

 Reactionary streams in American politics likely bear some role in women’s lagging parity. The most recent iterations include the conservatism of the neo-Nazi movement espoused by Richard Spencer, the unlikely stardom of Jordan Peterson, purveyor of 19th century psycho-social truisms presented as original contrarian theories, and the backlash to the #MeToo movement among Republican leadership exemplified in the appointment of Brett Kavanaugh to the Supreme Court after his histrionic confirmation hearing.

At the same time, these reactions to change suggest that unparalleled changes are occurring. Among them is a redefinition of character norms.  
Our very notion of “virtue,” a core term in philosophical discussions about character, has gendered connotations. The word “virtue” in English derives from the Latin word for “manliness.” While the ancient Greek term for virtue is gender-neutral, i.e. excellence (arete), Aristotle’s Nicomachean Ethics treats personal greatness as the birthright of a very few men. Aristotle speaks of courage and justice, but also liberality and magnanimity, character traits which reflect a superior social standing. Aristotle, like so many of his successors, demarcated virtue and public life as the space for the few males who belonged to an emancipated, land-owning, citizen class. This separation was made possible by setting aside manual and household labor or “economy” – literally, household management, as the province of women, slaves, and the non-citizen class of men. It was this vast majority’s task to create value which would accrue to the men in charge. It is thus no surprise that “magnanimity” or “greatness of soul” (characterized by a sense of entitlement) also figures largely among Aristotle’s virtues.

Because women, slaves, and non-citizen men performed the labors of life, Hellenistic aristocratic men enjoyed leisure or “paideia,” which permitted education and a public life that are essential for political participation. This primary division of labor and leisure justified an oligarchic and patriarchal logic: might equals right. This is the circular logic of power: those who are in power must have managed it by being somehow superior (an argument Aristotle makes in his Politics) or conversely, those who are in power determine the rules because they can enforce them. The latter is put forward by Plato’s Thrasymachus in the Republic (Thrasymachus, incidentally, may be one of the most socially-realist characters in early philosophical literature). This ancient rationalization of “might equals right” has enjoyed a surprisingly long shelf life. America’s founding fathers similarly opted for a “republic” rather than a democracy, ensuring that only a very few, adult, European-descended, property-owning men could vote. Even today, the fundamental logics of white supremacy and extreme capitalism can be parsed in very similar lines.

 Given that women, persons of color, and LGTBQ individuals have been running for office in record numbers since Trump, it will be interesting to see the kind of politics that arises from communities that are not accustomed to power and representation as their birthright. Figures like Elizabeth Warren, Kamala Harris, and the Congresswoman Alexandria Ocasio-Cortez suggest visions for a more inclusive distribution of power, labor, representation and compensation. In the long, painful stages of late capitalism where a middle class has all but disappeared, and the majority of Americans are carrying most of the burdens of contemporary life while only a very few enjoy its rewards, it seems that voters are ripe for a new kind of politics.

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Democracy and the Next Generation

Photo of kids and older adults at a protest

A group of young people are suing the US government over the damage being done to the environment. The lawsuit claims that the government has not done enough to fight climate change, and it makes sense that youths are bringing the suit – it is the next generation that will feel the effects of environmental damage most strongly. They claim they are experiencing harms due to the government’s neglect of environmental concerns that amount to the government not living up to constitutional commitments of ensuring them of rights to life, liberty and property.

This lawsuit represents a thorny political issue: where is the voice of the next generation represented in government?

In a representative democracy like the US, adults have the opportunity to vote to express their preference for how the government should be run by selecting the politician who will make decisions regarding policy. A background assumption of such a system is that different voters may have different interests and the government should be in touch with these interests. People living in urban areas may want different policies than those in rural areas; home-owning married folk may favor different tax policies than long-term singles; people who have experienced medical conditions and financial uncertainty may prioritize interests differently than individuals who have not. Ideally, the representatives that result from voting represent the interests of the voters. However, it bears note that even under these conditions, a group of people is left out of the polling –those too young to vote and the interests of future generations.

The concern over the influence of age on what interests are being represented in voting is not abstract or new. Voting practices in the US skew towards older individuals. In the 2016 presidential election, 71 % of the over- 65 population voted, compared with 46 % of 18- to 29-year-olds. If we consider voters to be self-interested, then this leaves the interests of the young under-represented and the interests of future generations out of the equation altogether.

With long-term projects and programs, older voters have less vested interest in how they turn out because they will experience fewer consequences of the programs. On the other hand, older voters have had more life experiences and arguably may vote “wiser.” Preserving and protecting the environment is clearly a long-term project, as the environment is something that future generations inherit and the treatment we expose our resources to may be largely irreversible.

Young people vote less, and future generations currently have no vote. One solution to this representation problem is to have entities vote on behalf of future generations. Civic organizations with fiduciary concerns for future generations could be given some voting weight alongside the individual voters, granting the limitation in the ability or practicality of living voters to live up to obligations to these groups.

Without such solutions looking likely now, we are faced with lawsuits like the current one these young people are lobbying against the government – claiming that their interests are not being respected on a grand scale. The suit may not be successful, as it calls for changes in policy by judicial decree, which is a potential violation of separation of powers. However, it embodies a tension in the size of the problems facing our government and the limited scope of the mechanisms for choosing solutions.

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Should the United States Supreme Court Be Abolished?

Photograph of the US Supreme Court framed by shrubbery

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

The Supreme Court is back at the forefront of political debate given the recent string of contentious decisions affecting key parts of the President’s political agenda (the Travel Ban), the culture wars (Masterpiece Cakeshop), and the labor movement (Janus). Even more, the recent announcement of Justice Kennedy’s retirement means that the Supreme Court’s ideological balance is likely to sway further to the right — and it may stay that way for some time, given the justices’ lifetime appointments. This makes landmark decisions such as Roe V. Wade vulnerable to being overturned. The time seems ripe for reflection on the moral and political justification for having a Supreme Court with its ultimate power of judicial review. Is this institution so undemocratic that it ought to be abolished in favor of majoritarian procedures for deciding the thorniest social issues of the day? Continue reading “Should the United States Supreme Court Be Abolished?”

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Reckoning with Democracy in Decline

Photograph of several flagpoles, with Chinese and Hong Kong flags visible

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

In the light of the recent decisions coming from People’s Republic of China regarding the elimination of the two-term limit on presidency, it is worth exploring the state of democracy in the world, and more specifically prospects for its survival. Even though China has never significantly approached fulfilling procedural minimum requirements for democracy, this move comes as a significant step away from classical conception of Chinese authoritarianism towards an even more closed political system. Setting China aside as just one among the sea of examples, one ought to focus on the reasons for which democracy or the ideals associated with democracy are globally in decline. Continue reading “Reckoning with Democracy in Decline”

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How Venezuelan Democracy Died

A portrait of Nicolas Maduro

Venezuela is scheduled to have presidential elections in April 2018. Although not technically illegal, this is unexpected. In 2016, Venezuela was expected to have regional elections, but Nicolas Maduro’s regime suspended them until 2017. He claimed it was due to economic reasons, but everyone suspected that he did so in order to gain some time, as his party was extremely unpopular at the time. Now, presidential elections have been called for April, although they were originally scheduled for December. Again, this is widely seen as a cynical ploy: the opposition forces are currently at a very weak point, and Maduro seizes the opportunity to defeat his rivals.

Continue reading “How Venezuelan Democracy Died”

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Tax Reform and the Value of Economic Equality: Part 2

A photo of President Trump speaking behind a podium.

Concerns for economic inequality have re-emerged with the recent tax reform legislation signed into law by the president (“The Tax Cuts and Jobs Act”). In the first part of this series, I considered an argument given in favor of the moral value of economic equality itself. Many prominent arguments, however, have been phrased less as in favor of economic equality and more as against the current and rising level of economic inequality in American society. While these arguments do not view economic equality per se as important, they do argue that equality of other kinds is important and that economic inequality can contribute to making us unequal in other important ways.

Continue reading “Tax Reform and the Value of Economic Equality: Part 2”

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Social Change through Democracy: Same-Sex Marriage in Australia

A photo of a rainbow flag being waved outside the U.S. Supreme Court.

Last month I made my first visit to Australia and was continually struck by the how different the country is from the US.  The scrubby outback, the bouncing marsupials, people saying “no worries” constantly—they all reminded me that I wasn’t in Kansas anymore (or in my home state of Texas). But there was also a difference in what was on the news.  Australia’s marriage equality vote was a constant topic, which seemed peculiar; peculiar because the vote was taking place now, when same-sex marriage was legalized in the US two years ago, and peculiar also because of the role of voting. In the US, a Supreme Court decision established marriage equality in 2015.

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Has Venezuela Become a Dictatorship?

Is Venezuela a dictatorship? The words democracy and dictatorship should be defined on a continuum. But, it should by now be clear that Venezuela is closer to the latter than to the former. Venezuela’s President Nicolas Maduro clinched power in a contested election in 2013. He promised a recount on national TV, but only hours later, he retracted. Ever since, he has claimed American imperialism is the real power standing behind opposition forces in Venezuela.

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