Balkinization: "A Republic, Not a Democracy"

Comments:

I don't get it. What's undemocratic about the presidential veto? (Assuming the president is elected by a majority.) I seems to me to be at least as democratic as letting the Congress make all the decisions.

In general, I think it's more democratic to give power to the executive, because the executive is easier for the voters to monitor than a legislator.

# posted by

Unknown : 9:36 PM

Isn't the real issue the tradeoff between democracy in the short run and democracy in the long run? Clearly the veto is not democratic in the immediate case because it, in effect, gives a veto to a minority in the legislature. But if we agree with Madison that

"The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true."

or even that "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.",

then we might agree that the veto not only preserves the Executive branch against Legislative encroachment (Federalist 51), but also protects the people themselves against measures which they might regret when the heat of the moment dissipates.

# posted by

Mark Field : 10:25 PM

I firmly reject the connection of "republic" necessarily with those able to vote in 1789.

My understanding of the thing we have our schoolchildren pledge in honor ("to the republic for which it stands") is a "public thing" in which the a majority of the people is not able to do whatever it wants. Instead, there are certain structural checks as well as rights that even the tinest of minorities should have.

Now, this still leads one to wonder what sort of republic ... overall, in many ways, it is a "democratic" one. And, for this reason partially, I question purely partisan vetoes. For some of the reasons supplied, it is questionable if one person (the President) should have such a power, since overrides are so hard in reality.

But, vetoes have certain values. First, constitutionality. Quite arguably the Clinton partial birth abortion veto was that -- the SC said as much in Stenhart (lack of 'health' exception'). Second, to secure executive power. Bush takes the signing statement route there.

And, arguably, if the Pres. believes some temporary majority -- especially if it is a relatively small one or perhaps one driven by questionable reasons -- is seriously threatening some general constitutional value. This is rather open-ended and perhaps controversial, but probably several credible cases can be supplied.

But, no, not for some special interest reason, which I do believe the stem cell vote was -- the Congress took time to reason out a solution, one reflecting the nation as a whole, and not by a close vote either. His father also made some special interest vetoes too. Surely other presidents did too.

So, count me for vetoes, but I admit they have been overused. To be wishy-washy, there can be a decent argument that they provide a generalized check and balance. Still, I don't find the "anti-democratic" argument w/o more very strong. Simply put, this is not a democracy. It is a republic.

But, sure, one needs to explain that a bit more too. Life is complicated!

# posted by

Joe : 11:21 PM

I confess to thinking debating the merits of the presidential veto in terms of republic v. democracy is historically anachronistic. When the framers insisted that the United States was a republic rather than a democracy, they meant the people would govern through representatives and not directly themselves. Whether the president had a veto power or not had no bearing on the original difference between a democracy and a republic. The main debate over the veto power took place in Jacksonian America, with Whigs, the more elitist faction, condemning that power, and Jacksonians, the more populist faction endorsing the veto. I suppose it is finally good to see Sandy lining up with the Whigs, but this rather suggests that the veto power, in the long run, may have no particular tendencies to make the society more or less populist.

# posted by

Mark Graber : 11:23 PM

Whether the president had a veto power or not had no bearing on the original difference between a democracy and a republic.

I'm think this is overstated in light of Federalist 73. The argument I made above is the one Hamilton makes there, and he, at least, pretty clearly considered the veto important, even essential, to a proper republican government.

# posted by

Mark Field : 11:48 PM

Perhaps there is opportunity for clarification here. Your blog post seems a confuscation of logic by an obviously learned man driven by presumptive conclusion.

Societies, eoconomies and cultures are driven, defined, evolved, and interlocuted by the risk taking tail; not by the median, the average or the majority. This in effect is the difference between the merits of a republic in its inception and a democracy.

If one is inclined to believe that Europe is a standard in which to aspire to, then the above statement is non-sensical and your argument stands.

If, on the other hand, one believes that the primary reason that the United States of America has obtained its greatness because of its reverence (albeit it mostly fleetingly) for that statement, then a recountance of its glaring historical and mostly cultural mistakes given the hindsight of modernity can not devolve its essential truth.

Onward to retention in today's world. This is a different topic sir. Given the law (and you know it better than I do) and more importantly the current political climate I'm sure you know that the Executive Branch is not only attempting to get things done in a cultural war as important as the war we are fighting in the Middle East. It is obvious which side you are on. Many of these discussions would never have occurred 100 years ago since we would have not been so divided. Heck, we were fighting violent Muslims attacking trade routes nearly two hundred years ago.

Your arguments regarding detainees are better spent arguing whether we are at war at all, rather than debating the historical merits of a republic or a democracy. These men were not picked up buying cigarettes at the corner store.

It seems to me you are the one making a straw man, sir.

# posted by

Unknown : 11:57 PM

Perhaps this is a bit like the devil quoting scripture, but let me offer my own quotation from Madison, in Federalist #14: "Is it not the glory of the people of America that . . . they have not suffered a blind veneration for antiquity [or] for custom . . . to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?” My fear is that we have entirely forgotten this most valuable of all of Madison's entreaties in favor of a ludicrous belief that his observations about the political scene in 1787 have much to tell us about our world today. (Ditto the reverential quotations from Tocqueville, who, whatever his sagacity about "democracy in America" re 1835, really hasn't visited our shores now in almost 175 years.)

As to jcb's question, I'm not sure I can do any better, in a necessarily truncated answer, than defend democracy on the grounds that it is the best system of collective self-determination, at least so long as it is accompanied by some genuine protection of basic rights for those who are most vulnerable. This doesn't translate for me into a simple embrace of majoritarianism; Mark Graber, for example, has convinced me that there are real benefits to bicameralism, and I therefore have no objection to our two-house Congress, even if, almost by definition, it makes it harder for a temporal majority to exercise its collective will.

Readers of the Federalist will recall, incidentally, that the minority of whom Hamilton in particular was most solicitous was the well-off. There are explicit protections for property (i.e., the takings and contract clauses), as well as structural protections,i.e., the barriers placed in the way of achieving popularly supported redistributive legislation. That aspect of the Constitution continues to work all too well, as illustrated by the fact that, with regard to ordinary people, we have one of the worst medical care systems in the developed world. Is this something to be proud of? (Or is the Constitution responsible only for our national glories and not for our national failings?)

# posted by

Sandy Levinson : 11:23 AM

One more point: "chef" asks "What's undemocratic about the presidential veto? (Assuming the president is elected by a majority.)" But, of course, a high percentage of our presidents are NOT elected by a majority (since WWII, Truman, Kennedy, Nixon (1968), Ford, Clinton (both times), and Bush (2000).

# posted by

Sandy Levinson : 11:25 AM

Societies, eoconomies and cultures are driven, defined, evolved, and interlocuted by the risk taking tail; not by the median, the average or the majority. This in effect is the difference between the merits of a republic in its inception and a democracy.

Even in polities with absolute rule, those in a structural position to make decisions of the level you propose (the risk taking tail) must be aware of the interests of the majority and cultivate a concordance between the populace's interests and their own actions, even if that concordance is fictional. Hysteresis between a change in the majority's views and those espoused by leaders opens up the possibility of a radical disconnect, and leaders tend to avoid such problems when possible. Every decision has a social context, and the "risk taking tail" generally does not like to take risks.

In short, although we are often prone to conceive of leaders as "prime movers" or "definers," there is a fundamental interdependence between them and the "average." It may be more appropriate to conceive of the process in terms of a dialectic, rather than a top-down model of oppression that dismisses the majority's ability to influence decisions.

# posted by

PMS_CC : 12:08 PM

As to jcb's question, I'm not sure I can do any better, in a necessarily truncated answer, than defend democracy on the grounds that it is the best system of collective self-determination, at least so long as it is accompanied by some genuine protection of basic rights for those who are most vulnerable.

This, to me, is the real issue. Democracies will violate fundamental rights very readily, a truth Madison knew all too well. Is there, after all, a republican remedy for this problem?

More democracy at the federal level seems to me to be an important part of that remedy. Madison's theory never was implemented once the Convention decided on equal representation in the Senate. That certainly needs to change. Other obvious steps towards more democracy would include an end to partisan gerrymandering; an end to "supermajority" requirements at both state and federal level (veto possibly excepted -- see my comments above); more emphasis on increasing the percentage of voters and eliminating fraud in elections and intimidation of voters; elimination of the electoral college (less necessary if the Senate were properly constructed); and better use of census data to allocate representation.

I'm sure that others can suggest more, and since I haven't yet read Prof. Levinson's book, probably have.

But even if we implemented all these changes, I think we'd still want and need the protections for minorities for which we now rely on the judiciary. I think we'd also want some structural "friction", such as the veto and a bicameral legislature, to prevent majority tyranny. Two hundred odd years after the Founding, these remain "genuine protections for those who are most vulnerable."

# posted by

Mark Field : 12:10 PM

Professor Levinson:

I am absolutely confident that it simply doesn't help to be reminded that "we are a republic, and not a democracy, and should keep it that way" unless one has a quite robust theory of precisely how it is that the anti-democratic (meaning anti-majoritarian) features of our Constitution serve important public values beyond simply making it difficult for the majority in fact to rule. And if one believes that it is not important, in the United States, that, all things considered, majorities should rule--indeed, if one believes that it is highly desirable that one should place a plethora of barriers (often labeled with the basically mindless, because unanalyzed, term "checks and balances") in the way of majority rule that go well beyond simply protecting the rights of vulnerable minorities--then perhaps this calls into some doubt whether we should really be describing ourselves as a "democracy" at all.

Thank you for this interesting post.

I would argue that we are not a democracy and never have been. We are a republic.

You are correct that simply arguing to tradition is not a logical defense of why we should remain a republic. Let me offer a brief defense of our republic.

To start, the purpose of our Republic is to limit the arbitrary imposition of government power against the People.

I do not believe our system is anti-majoritarian so much as the various checks and balances require an effective super majority consensus to impose governmental power on the citizenry. This concept prevented arbitrary power of the British king from being replaced by the equally arbitrary power of a President or a tyranny of a transient simple majority in Congress.

Our system also effectively disperses power between the levels of government with enumerated federal powers leaving the remaining powers granted to the several states.

Power is also dispersed geographically across the country by granting each state no matter the population two senators and through the electoral college system. This prevents a very few larger urbanized and populated states from running the rest of the country. This has only become a major political issue recently because the minority party consists almost solely of a few larger urbanized and highly populated states.

I support maintaining the Republic because I am a libertarian (in most things apart from foreign policy) who wants a firm leash on federal power. Far too many of these constitutional leashes were loosed last century when the Courts allowed the federal government to legislate far beyond their enumerated powers and then allowed the Congress to delegate much of its power to a nondemocratic bureaucracy. With all respect, I do not wish to lose even more of those leashes as you suggest to gain a tyranny of a transient majority.

# posted by

Bart DePalma : 12:36 PM

The veto is a powerful but limited control central to the presidency in the US. It represents one of the ingenious ways the laws of our land delimit power's innate tendency to concentrate. I see the system as a prototype for what modern mathematics and cybernetics have called fuzzy logic. Vetoes are controversial; recently a news article with, which I disagree in many sections, nevertheless colorfully depicted the current 109th congress as DoNothing [1]; yet one passage recaps the standoffs between Truman and congress including Youngstown, Taft-Hartley, and the bill founding the CIA among other governmental reorganization measures; the article describes Truman's 1948 campaign characterization of his congress as DoNothing; Truman vetoed Taft-Hartley (the union right to picket bill) but the congress passed it with supermajority bypassing his veto.

A recent post elsewhere on this website by ML discusses an interesting permutation on the presidential veto: the 'congressional veto', q.v. Marty has some energized comments about the application of the INS v Chadha decision which we are seeing in presidential signing statements; essentially, the presidency in our times is telling congress the executive has no accountability to work with congress in its actions; rather the current presidency sees its executive right as only needing to Report to congress what the presidency chooses to do. By my count, presidential signing statements have invoked Chadha 37 times since 2000, including 3 times in the signing statement regarding the border fences act published October 4, 2006. [2]
----
[1]McClatchy article byline Margaret Talev citing JJPitney former Cheney assistant and current college professor here.
[2] The signing statement for HR5441 is viewable here in a large html file on an independent website which studies the texts of presidential signing statements during the Bush-II administration.

# posted by

JohnLopresti : 1:55 PM

I do not accuse defenders of the veto as supporting slavery. What I do say is that evocations of the Framers as if they are the last word on the wisdom of constitutional design must recognize that similar arguments were indeed made with regard to every major change in our system, including the abolition of slavery. If one wishes to defend the veto, one should make the empirical case that we're better off with it than without it. Obviously, we can't really know what our politics would have been like without the veto, but we could, heaven forbid, actually look around at the rest of the world, most of which gets along very nicely without our constitutional abnormalities.

The presidential veto is viewed as a way of preventing concentration of power. I would be tempted to guffaw if our present situation were in fact an occasion for humor. The veto is just another way that the president amasses power (and huge campaign contributions) and, in effect, can negate the effects of congressional elections with the stroke of a pen. Along the same line, I would be extremely interested in any evidence that the veto has often been used to try to protect vulnerable minorities. Yes, there are some examples, including Harry Truman's brave veto of the vicious McCarran-Walter Act. And some would place both Clinton's late-term abortion AND Bush's stem-cell veto in this category. But offset that with George W. Bush's veto of the Civil Rights Act of 1989 or, of course, Andrew Johnson's vetos of reconstruction legislation.

# posted by

Sandy Levinson : 2:39 PM

"So what IS the right label for the United States these days?"

given the public's relative "ignorance" (by which I mean the state of knowledge relative to that necessary to make informed voting decisions) - as evidenced by many recent polls - and the relatively low quality of many candidates for elective office, "mediocracy" (or some more imaginative variant thereof) currently seems to me fairly apt.

since those touting the need for a more "pure" democracy are unequivocally better equipped than I to have a sensible position on this, I'm very curious why they think fixes that seem to promise "more of the same" offer any prospects for improvement in the current depressing situation, which I attribute not to an insufficiently "pure" democracy but to the toxic but seemingly unavoidable mix of an ignorant (in the sense defined above) public and a largely irresponsible mass media, plus seemingly widespread anti-intellectualism.

-charles

# posted by

Charles T. Wolverton : 3:28 PM

I question the implications of this statement:

But offset that with George W. Bush's veto of the Civil Rights Act of 1989 or, of course, Andrew Johnson's vetos of reconstruction legislation.

I wonder ... is this not arguably a defensible approach? As I recall, the legislation was in response to SC opinions that Congress felt problematic. Thus, it was controversial.

You, I know this sounds bad to some here, also have to wonder what "minority" means in this context. This is suggested by the Johnson veto. That was a rather grand expansion of federal power. It -- like the 1960s -- was sound, but it still was truly controversial even in the North.

So, again, as a structural check, is it wrong to require a supermajority in such a case? The choice of AJ as a unity candidate suggested the fact a significant part of the country, even the Civil War North, has a conservative side.

Madison is honored here too, even if the Framers are not gods, and he was not just concerned for speech and such. His 'minorities' included defense of property and other "conservative" concerns.

The fact the legislation blocked looked "good" is troublesome, but sometimes that depends on who's ox is being gored. Such is the rub in non-majoritarian aspects of our government.

Or, is everyone here against filibustering Bush's moves?

# posted by

Joe : 4:19 PM

it should be noted that some are against filibusters etc. ... but if you are not, being only against "bad" ones is a pretty tough rule to set. No check is cost-free.

# posted by

Joe : 4:22 PM

If one wishes to defend the veto, one should make the empirical case that we're better off with it than without it.

I think you may have reversed the burden of proof here.

Regardless who has the burden, there are problems with making an empirical case:

1. People disagree on which bills deserve a veto. Take the Bank bill, for example. I have no idea which category Jackson's veto falls into -- whether it protected the majority against minority preference or whether it undercut an important economic policy that benefitted the lower classes. It's hard to keep score when the policy implications are subject to such disagreement.

2. A veto represents something that did NOT happen. It's pretty hard to measure the effect of that.

3. The veto power forces compromise. For better or worse, Congress has to modify its bills to account for a possible veto. Again, the empirical effect of this is very hard to measure.

we could, heaven forbid, actually look around at the rest of the world, most of which gets along very nicely without our constitutional abnormalities.

We also would want to be confident (a) that other countries have in place systems to protect "vulnerable minorities" which actually result in greater protection, and (b) that we can obtain that protection without the veto.

The best argument against the veto, IMO, is the current imbalance in power between President and Congress. Eliminating the veto may be an essential step in regaining some balance. But before we do that, it would be much more important to democratize Congress in the ways I suggested above. Otherwise, the undemocratic system now operating there seems likely to lead to worse results, not better.

# posted by

Mark Field : 6:34 PM

There is, IMO, no imballance of power between the legislature and executive. There's an imballance in the willingness to USE that power. But this is a matter of institutional culture rather than institutional design.

Congress, after all, can remove the executive. Notice that the executive can't return the favor. Similarly, while the executive can veto legislation, vetos can be over-ridden.

Congress IS given the last word in these conflicts, if they want to utter it.

# posted by

Brett : 7:46 PM

This comment has been removed by a blog administrator.

# posted by

Joe : 2:26 AM

Professor Levinson: And the authoritarian impulses that are behind the Military Detention Act, with its permanent suspension of habeas corpus and creation of potentially vast numbers of people--though it would be bad enough if there were only a few of them--who have no rights to lodge legal protest against indefinite detention without the slightest semblance of serious due process of law--call into question the "liberal" side as well. So what IS the right label for the United States these days?

Respectfully, my concern is that the authoritarian impulse is best held in check by undemocratic facets of our institutions, however poorly they seem to be working at the moment. Lacking such undemocratic aspects the Rove/Cheney machine could simply focus on dumping all their money and influence into ABC programming and Fox news and effectively purchase in fee simple the voice of the people. It comforts me greatly to know there are forces at work other than simply what my fellow Americans can be programmed to believe and vote for. I think the phenomenon of blue collar workers largely voting against their obvious class- or self-interest is sufficient support for my view.

# posted by

Robert Link : 3:51 PM

Professor Levinson:

The presidential veto is viewed as a way of preventing concentration of power. I would be tempted to guffaw if our present situation were in fact an occasion for humor. The veto is just another way that the president amasses power (and huge campaign contributions) and, in effect, can negate the effects of congressional elections with the stroke of a pen.

I think out differing views on this subject come from our differing viewpoints. You are examining this veto from the competing power bases of the executive and legislature. In contrast, I am looking at the veto from the viewpoint of the people who are subject to governmental power.

While it is true that the veto shifts power from the legislature to the executive, it also serves as another obstacle to the imposition of state power on the citizenry because you need the agreement of the President as well as majorities of the House and Senate to pass legislation.

Furthermore, I must disagree with the opinion that a veto somehow "negate(s) the effects of congressional elections."

There are three levels of democratically elected representatives in our federal government - a House elected by local proportional districts, a Senate elected by entire states and a President elected by all the nation. Requiring legislation to be approved by all levels does not negate elections of any single level.

You appear to be operating under the assumption that the Congress is the only democratically elected branch of our government. It plainly is not. The President has at least equal democratic legitimacy to the Congress. Indeed, the President is the only representative elected to represent the national interest rather than just parochial local or state interests and arguably has greater legitimacy the representative of the national interest of the federal government.

# posted by

Bart DePalma : 7:31 PM

Bart: There are three levels of democratically elected representatives in our federal government - a House elected by local proportional districts, a Senate elected by entire states and a President elected by all the nation.

Bart, respectfully, you can do better. Professor Levinson's point is that the legitimacy, in terms of pure democracy, of the Presidency and the Senate is less than that of the House. You can disagree with whether that is a good feature of our system or a bad one, but you cannot dispute the statement itself.

In 1980, when the former CIA-head and his spokesmodel took the white house I learned to my youthful dismay that this not only wasn't the first team to take that office without a majority vote but that indeed 25% of the presidencies to that date had been contrary to the popular vote. In a *democracy* that percentage would be zero. Such is the nature of our government, however, that the people do not elect the President, the people send electors to the electoral college. I know you know this, and I know you know it supports the professor's central theme that our Constitution is fraught with undemocratic principles.

So too with the Senate versus the House. With regards to the House, the vote of a citizen of a highly populated state such as California or New York is equal to that of a citizen of a relatively lightly populated state such as Rhode Island or Alaska. But in the Senate my vote as a Californian is greatly diluted as compared with that of a citizen of Rhode Island. If democracy includes the notion that all votes are of equal value then the construction of the Senate is patently undemocratic.

The question is not, then, whether the professor's observations regarding the amount of democratic action in various facets of government is accurate or not; I think we can trust he knows his civics at least as well as we do and I have not seen anyone yet catch him out on such easily verified specifics. The question is whether or not the anti-democratic aspects are "features" or "bugs". What concerns me most about his call for a Constitutional Convention and his focus on strict and simple majoritarianism is that I know how much Antonin Scalia appreciates having his majoritarian sentiments voiced so articulately by his opponents. The professor's analysis of the Contitution cannot be gainsayed; his faith in the electorate might however be misplaced.

# posted by

Robert Link : 10:59 AM

Robert Link said...

Bart: There are three levels of democratically elected representatives in our federal government - a House elected by local proportional districts, a Senate elected by entire states and a President elected by all the nation.

Bart, respectfully, you can do better...

I think you are raising two issues with your last post concerning the comparative "democratic legitimacy" of House and the President.

First, our system and many other democracies allow the winner of a plurality of the votes in a multiparty race to take office. This principle applies to all elected representatives at the federal level and is not peculiar to the Presidency. Thus the fact that a quarter of our Presidents were elected with a plurality does not make the Presidency any less democratic than the House.

What I think you are getting at, though, are the two instances where the winner of a majority of electoral votes did not also receive a majority of the popular vote.

You are correct that this could not happen in the House. However, that this discrepancy has only occurred twice and the difference in the popular vote so miniscule in those two cases that I think any difference in "democratic legitimacy" between the House and the President is too small to make any real difference on that ground.

So too with the Senate versus the House.

I would begin by pointing out that the Electoral College is not very analogous to the system under which we choose senators. The Electoral College is a compromise between the House's population proportionality and Senate's geographic proportionality. While the Electoral College awards votes state by state (generally) on a winner takes all system, the number of votes allowed each state is proportional by population. Thus, the vast majority of those who have won the presidency with a majority of electoral votes also won a plurality of the popular vote.

# posted by

Bart DePalma : 1:32 PM

"Bart" DePalma says:

I support maintaining the Republic because I am a libertarian (in most things apart from foreign policy) who wants a firm leash on federal power.

He lies. He's one of the most ardent supporters of Yoo's Unitary [read "unchecked"] Executive. And he's uttered nary a peep about the plethora of Dubya's other "signing statements" besides the ones in the "foreign policy" realm, and is seemingly of the opinion that the President is justified in deciding for himself "what the law is" and acting in accord with that, even in contravention to the explicit laws of Congress.

If "Bart" is a 'libertarian', he keeps it very well hidden.

Cheers,

# posted by

Anonymous : 2:34 PM

"Bart" DePalma missed a few civics classes:

There are three levels of democratically elected representatives in our federal government - a House elected by local proportional districts, a Senate elected by entire states and a President elected by all the nation.

News to me. Would that it were in fact so. Katherine Harris would be even less than a comma.

Cheers,

# posted by

Anonymous : 2:38 PM

"Bart" DePalma said:

What I think you are getting at, though, are the two instances where the winner of a majority of electoral votes did not also receive a majority of the popular vote.

There's more than two elections where the victor didn't get a majority of ther popular vote. The two specific elections I think "Bart" had in mind (including 2000) were elections where the victor didn't even get a plurality of the popular vote. As such that's a different degree of anti-democratic quality than simply not achieving an outright majority (but nonetheless at least giving a nod to popular democratic sentiment). And I think that this result (and the possibility that in fact the Electoral College could in theory elect someone who hadn't even been on the ballots) is what gives the Electoral College its real anti-democratic slant.

Cheers,

# posted by

Anonymous : 2:48 PM

Bart: I would begin by pointing out that the Electoral College is not very analogous to the system under which we choose senators.

That would be a great choice, because it gives the illusion of replying to, disputing, or perhaps refuting my points while in reality failing to even address what I have said on the matter---or did you somehow parse my "so too" as belonging to the paragraph above it?

The President is not elected by the people, s/he is elected by the Electoral College; that is a far far cry from the people voting for the President and the job going to the person who gets the most votes.

The comparative power in the Senate of a single citizen's vote is greater if that citizen lives in a sparsely populated state such as Wyoming rather than a heavily populated state such as New York; it's a matter of how many millions of voters "share" the two Senate votes their state gets. That is a far far cry from "one person, one vote."

Again, Professor Levinson's analysis of the functioning is spot on and I am surprised to see you arguing the points. The only issue, again, is whether these points are strengths or weaknesses in our body politic. And one more "again", it confuses me to see Professor Levinson making what I tend to think of as "Scalia-ish" majoritarianist arguments just as much as it confuses me to see you argue against them.

Lastly, you said a bit earlier, "I support maintaining the Republic because I am a libertarian...", but surely you mean that other way around, that the ideals you hold dictate your affiliations? I tend to disagree (respectfully and reservedly!) with Professor Levinson's conclusions about a new Constitutional Convention not because of my party affiliation but because I don't trust my fellow voters not to just let the fascist machine (ahem, "military- intelligence- infotainment- industrial- complex") have it's way with us (as in "you and me.") Safer for all, I believe, to make what we've got work than to risk the current miscreants or the miscreants to come seizing their chance to open up whole new realms of ways to do wrong in the name of the People.

# posted by

Robert Link : 4:15 PM

One needs to wonder how this built-in "bias" (unintentional, of course) in favor of smaller/red states is to be remedied in PRACTICAL terms?

Attempting to strip senate/electoral college representation from populations that are armed to the teeth, could prove lethal for the nation's welfare. Today's ascendancy of the christian far right itself, seems to have been a response to breakneck-paced progressivistic culture on both coasts, and is a manifestation of that core, uniquely American ideology (quoting PJ O'Rourke): "Whats the big idea?"

Ordered liberty and the time-tested instruments that guarantee it, are more important than whether a state is completely "democratic". Massive Democracies may run a serious risk of turning into mobocracies. Tyranny of the majority etc. Given the fecundity of the conservatives, and the near-or-below-replacement reproductive levels of the progressives, it may backfire 50 years hence, though it sounds like a "good idea"/"moral imperative" now ;)

The constitution doesn't contain any impractical, exclusive ideology for any particular group, and has adapted itself to changing realities (with the help of progressives of course) over the last 200 years, by extending and universalizing the fundamental notions of liberty. Does the framework itself needs to be redesigned drastically (which is where the EC reform is heading towards?) and at a high price? maybe not.

# posted by

rn : 3:25 PM

Massive Democracies may run a serious risk of turning into mobocracies. Tyranny of the majority etc.

This is precisely the opposite of Madison's argument in Federalist 10. His point, which is really little more than a common sense application of the law of large numbers, is that the more people involved in the making of a decision, the fairer that decision is likely to be. That's a protection against mob rule, not a policy to make it more likely.

The constitution doesn't contain any impractical, exclusive ideology for any particular group, and has adapted itself to changing realities (with the help of progressives of course) over the last 200 years, by extending and universalizing the fundamental notions of liberty. Does the framework itself needs to be redesigned drastically (which is where the EC reform is heading towards?) and at a high price? maybe not.

Leaving aside the dubious historical accuracy of your introductory clause, I imagine the opponents of all those changes you praise would have made exactly this argument against the policies we now see as expanding liberty. I think the empirical historical argument supports the conclusion that expanding democracy has benefitted all of us. Eliminating the Electoral College seems pretty consistent with that historical trend.

# posted by

Mark Field : 4:03 PM

"His point, which is really little more than a common sense application of the law of large numbers, is that the more people involved in the making of a decision, the fairer that decision is likely to be."

well, it's very seldom that as a non-lawyer I can speak authoritatively in a forum like this, but this is one of those rare instances. this statement is exactly wrong if you do think - as I do - that the opinion of the "average" citizen leaves much to be desired.

the LLN says (using somewhat imprecise language) that given a large number of samples from a population (eg, opinions) the average of those samples will converge to the actual statistical mean of the population as the number of samples increases. (think polling).

in the present context, this translates into the idea that 535 legislators will come closer to capturing the actual "will of the people" than will only 10. but that says nothing about the "fairness", wisdom, constitutionality, etc of that will.

to repeat an earlier argument, my concern is exactly that between mass media and polling, the actions of legislatures have become too close to truly representative of the populace's will thereby defeating what I interpret to be madison's concept of the "superior person" who would make wise decisions somewhat independent of the popular will. otherwise, why not just govern by referendum (which has worked oh so well in CA).

-charles

# posted by

Charles T. Wolverton : 8:07 PM

in the present context, this translates into the idea that 535 legislators will come closer to capturing the actual "will of the people" than will only 10. but that says nothing about the "fairness", wisdom, constitutionality, etc of that will.

I see what you're saying, but I was making a different point. raj n had criticized "massive democracies" as more prone to mob rule. My comment about Madison's "expand the sphere" argument and the LLN referred to the size of the electorate as a whole, not the size of the representative body.

my concern is exactly that between mass media and polling, the actions of legislatures have become too close to truly representative of the populace's will thereby defeating what I interpret to be madison's concept of the "superior person" who would make wise decisions somewhat independent of the popular will

It's important to institute protections against majority tyranny, but the way to do that IMO is first to collect the popular sentiment and only after that to "filter" it by such devices as bicameral legislature, executive veto, judicial review, etc. If a system fails at the first step, then it's hard to characterize it as "republican" at all. The "filters" assure that the larger majority decision is considered, which means it's much more likely to be fair.

# posted by

Mark Field : 10:43 PM

"the way to do that IMO is first to collect the popular sentiment"

unfortunately, this ignores the chicken-egg aspect of contemporary "public sentiment". polls may capture it, but where does it come from? given the complexity of contemporary issues, it has to be informed by external sources, and those presumably are primarily mass media.

I don't think it's generally agreed that the mass media aren't doing a spectacular job of informing the public. even worse, if your primary source is fox cable or opportunists like ann coulter, as apparently is the case for a shockingly large fraction of the public, "misinforming the public" would be more accurate. then the popular sentiment is driven not by a large diverse electorate making independent assessments (critical to the LLN) but by a small but influential group with a common agenda.

-charles

# posted by

Charles T. Wolverton : 1:59 AM

first words, second paragraph should obviously be "I think".

# posted by

Charles T. Wolverton : 2:49 AM

Mark Field: ...I was making a different point. raj n had criticized "massive democracies" as more prone to mob rule. My comment about Madison's "expand the sphere" argument and the LLN referred to the size of the electorate as a whole, not the size of the representative body.

LLN relates to sampling, and to be applicable requires as near a random sampling as can be humanly devised; the further from truly random the sample is the less predictive value thereof, regardless the size.

LLN has *nothing* to do with democracy, not even in terms of the size of the voter pool, because there is no effort at random sampling.

There is some popular literature of late arguing for "the wisdom of the crowd," to say that such literature is contentious may be an understatement.

All things considered, democracy is a *terrible* way to make decisions for there is nothing in democracy requiring such decisions to have any relationship to extant fact or factual ramifications of decisions. Democracy, then, is not an ideal because it is good for decision making, fact finding or wisdom. It is an ideal because it is just. If a dictator leads a populace to its doom that is unjust. If that populace universally decides of its own free accord to work its own doom that is tragic, but just. If a majority or super-majority votes to lead a populace to its doom that is less just than with a universal consensus, but much more just than under a dictator.

Posner and his ilk don't put much stock in being just. Bush and his ilk even less.

# posted by

Robert Link : 10:25 AM

"If that populace universally decides of its own free accord to work its own doom that is tragic, but just."

altho I try to avoid concepts like "just", I'll accept that word here and note that my point above was intended to address this general idea. if an informed majority in a society that is arguably a functioning democracy votes for doom, that doom can be considered to be its "just deserts". but if that majority has been intentionally misinformed and the democracy is malfunctioning, not so. I fear we are in the latter situation.

BTW, as I hope was clear, I agree that the LLN is irrelevant to the discussion except in polling.

-charles

# posted by

Charles T. Wolverton : 11:32 AM

LLN relates to sampling, and to be applicable requires as near a random sampling as can be humanly devised; the further from truly random the sample is the less predictive value thereof, regardless the size.

LLN has *nothing* to do with democracy, not even in terms of the size of the voter pool, because there is no effort at random sampling.

Madison's essential point, which I apparently summarized poorly, was that an electorate consisting of the entire population of the US would make better decisions than would an electorate consisting of only a sample of that entire pool. The specific example he gave compared the entire US to the state of Rhode Island. I think my use of the "law of large numbers" is defensible in this context, but I certainly don't want the terminology to interfere with the basic point.

All things considered, democracy is a *terrible* way to make decisions for there is nothing in democracy requiring such decisions to have any relationship to extant fact or factual ramifications of decisions.

Madison's system incorporates two types of protections. First, he relies on the point I made above, namely that the more people involved in the decision, the fairer it's likely to be. Second, he established a series of "filtering" mechanisms. These assure (or try to, anyway) that the decisions made are deliberate or considered. In combination, these two features (IMO) eliminate your concern.

Democracy, then, is not an ideal because it is good for decision making, fact finding or wisdom. It is an ideal because it is just.

I agree that democracy is just. I also believe that, properly hedged so that it acts with deliberation, it makes better decisions, in general and over time, than other systems.

if that majority has been intentionally misinformed and the democracy is malfunctioning, not so. I fear we are in the latter situation.

Remember that if the majority had actually ruled in 2000, Bush would never have been President. It was the very lack of democracy which got us into this mess.

Deliberate misinformation is what allows an oligarchy to subvert a democracy. That's what has happened over the past 5-6 years. But it's not possible to maintain that pretense for very long if the "filters" are properly designed, and we're starting to see it unravel. As Jefferson said,

"It is the old practice of despots to use a part of the people to keep the rest in order, and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages. But our present situation is not a natural one. The body of our countrymen is substantially republican through every part of the Union. ... Time alone would bring round an order of things more correspondent to the sentiments of our constituents; but are there not events impending which will do it within a few months? The invasion of England [Iraq], the public and authentic avowal of sentiments hostile to the leading principles of our Constitution, the prospect of a war in which we shall stand alone, .... A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the mean time we are suffering deeply in spirit, and incurring the horrors of a war & long oppressions of enormous public debt. ... If the game runs sometimes against us at home we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are the stake." Letter to John Taylor, June 4, 1798.

# posted by

Mark Field : 12:06 PM

"it's not possible to maintain that pretense for very long if the "filters" are properly designed"

exactly the "if" that concerns me. I fear the "filters" may have been "properly designed" for other eras but may be inadequate for the information age, contrary to what one might have hoped and reasonably expected.

obviously, I hope you're right and I'm wrong. either way, we'll get a first look at an answer in less than four weeks. with the R party seemingly in desperate straits, I'll consider a R sweep quite ominous.

-charles

# posted by

Charles T. Wolverton : 12:44 PM

mark -

not that it matters, but on rereading your point about madison and the LLN and trying to recall fed 10, I see a possible relationship, perhaps what you have in mind.

one effect of averaging is to reduce the impact of outliers - ie, extremes - and the possible resulting deviation of the sample mean from the true mean. the larger the sample, the greater this "moderating" effect.

implicit in this being perceived as beneficial is the assumption that the true mean of public opinion is "moderate". now, I am admittedly biased towards knowledge and therefore am well aware that I may be totally wrong, but I consider extreme ignorance to be a hinderance to moderate views and have some anecdotal evidence to support that. the public, as revealed in several recent polls, is unbelievably ignorant about simple facts - the earth's orbital period and age, WMD in iraq, who their reps are, etc, etc. hence, if I'm right, their views are unlikely to be moderate.

again, we'll get some insights soon enough.

-charles

# posted by

Charles T. Wolverton : 1:06 PM

not that it matters, but on rereading your point about madison and the LLN and trying to recall fed 10, I see a possible relationship, perhaps what you have in mind.

one effect of averaging is to reduce the impact of outliers - ie, extremes - and the possible resulting deviation of the sample mean from the true mean. the larger the sample, the greater this "moderating" effect.

Yes, this is what I had in mind. Thanks.

# posted by

Mark Field : 3:26 PM

"Democracy, then, is not an ideal because it is good for decision making, fact finding or wisdom. It is an ideal because it is just."

Curious if this theory would have been applicable in the case of any southern slave-holding "state", where the majorities approved of and acquiesced in the practice of slavery. Were there any substantive efforts on the part of these states' legislatures -being the representatives of the moral majority - to abolish it?

Most ideals which sound good on paper do not actually translate well in the real world, owing to, what Hamilton called the "weaker springs of human character". Equality in income and living standards promised by communism, however "ideal" it may be in the abstract, couldn't survive the fallibilities of its chief practitioners/directors.

The constitution seems to be a cynical framework to make sure certain fundamental freedoms survive - having been devised with hardheaded practicality, ensuring checks and balances between all concerned entities at most (all?) possible levels.
i.e Institutionalized divide-and-rule , whereby the the power of the government is kept very weak, just a step above gridlock? From a big picture, immigrant's perspective, this is why America is forging ahead in the world. Little or no government intrusion in people's lives. (Of course today's conservatives are even more pro-"big government" than the democrats, but I'm digressing now :) )

As was pointed in an earlier post, theres a potential danger in trying to achieve such major revision of the constitution (denying the voice that had so long been been enjoyed by the red states) _peaceably_. Who's going to expostulate the just"ness" of the proposal to these armed populations, even if one accepts that, theoretically its a desirable solution in the long term?

# posted by

rn : 5:02 PM

Curious if this theory would have been applicable in the case of any southern slave-holding "state", where the majorities approved of and acquiesced in the practice of slavery.

I think the response about "democracy" in the antebellum South might be something like Chesterton's comment about Christianity: it's not that it failed, it's that it was never tried.

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