What is "Direct Democracy"? What is "More Democracy"? What is Less?

 

The dawn of the 21st Century in the U.S. resembled the opening of the 20th in producing an explosion of interest in participatory democracy. This was true particularly on the West Coast, where "the Oregon System" got going around 1902 and the Schwarzenegger Party of One took over in 2003. Both eras were fueled by a desire for direct democracy--The Initiative, The Referendum, and The Recall--to take its place alongside (if not entirely supersede) government by elected or appointed representatives of the people.

If we think that arrangements according to which citizens make policy themselves is necessarily more democratic than those in which others make it for them it will seem obvious that use of initiatives (where "the common folk" write their own laws rather than relying on legislatures and executives) must make a jurisdiction more democratic.

But, to quote Ralph Fiennes's Laurence Laurentz in Hail Caesar, "Would that it were so simple." 

Is it the making of the law or the opportunity to be involved that counts? Suppose that, on average, about 60% of a populace votes in their legislative elections but only 20% vote on some ballot question. If we know in advance that those are the likely levels of participation, will we still say that a law enacted via initiative is the result of a more democratic process than one enacted by a legislature?

Or take term limits. It is often argued that without relatively short terms of office we cannot have real democracy, because of "the power of incumbency." If incumbents almost always win, the results of elections can seem predetermined. On the other hand, barring a favorite candidate from running simply because she has already had the job seems the opposite of system in which the electorate can get what it wants.

These "paradoxes of democracy" can even stymie well-known experts in the field. For example, in his review of three books on California's move toward a "hybrid democracy" of legislature and the people working side-by-side, Rick Hasen concludes that although voters are judicious in the types of things they think should be passed by ballot initiatives, they "might be used to enact political reform....Though the public policy of the state cannot be directed primarily by the voters through plebiscitary democracy, voters can take steps to improve the system by which the legislature and governor make policy....This is, perhaps, a more modest version of hybrid democracy, but also one that is a more realistic vision of what voters can do at the ballot box."*

While that may be an encouraging take on the matter, it seems to me to reflect Hasen's own sanguine attitude rather than sound logic. It seems to me, on the contrary, that if there is a single area that ought to be off-limits to voters, it is that within which electoral rules are made. For democracy can be restricted as easily as enlarged. While Hasen certainly seems to want democracy increased (without saying precisely what that would mean), surely some majorities would like it lessened. Basic electoral principles and systems must therefore be enshrined in constitutions in ways that prevent alteration....or democracy will always be imperiled.

It seems, then, that we need to provide a few definitions, even if a couple of them turn out to be stipulative, or we will never make any progress in determining what provisions make a scheme more or less democratic. We can start by laying down this basic principle:

A. A population P enacting a law L is more democratic than representatives of P enacting L.   

Obviously we will need to be more specific about what it means for a group to actually enact something. So let us add that 

B. A population P has enacted a law L whenever every adult in P has been given the easy opportunity to either accept or decline L and, pursuant to a basic constitutional provision setting forth the manner in which prospective laws may be put before the people, a majority of those voting have opted to accept L. 

(I do not here attempt to define "easy opportunity.")

Now, here are a few relevant (and I hope uncontroversial) facts:

1. Elections cost money. 

2. Any particular period of time chosen within which it is assumed that voters will not have changed their minds since last making a choice on an issue will be arbitrary.

3. There is such a thing as voter fatigue: constant elections may result in decreasing interest regardless of the relative importance of the issue(s) involved.

4. Signature requirements for forcing a special election vary quite substantially among jurisdictions. That is because, other than a majority requirement for success (which is a simple function of the assumed equality of voters and their votes) any particular percentage used in an election rule (e.g. of voters in the last election or of registered voters or to override a veto) will be arbitrary--a mere matter of convenience rather than a basic axiom of democracy.

5. Paying residents enough to encourage substantial increases in electoral participation is likely to be costly.

5. Making electoral participation compulsory is unpopular, and even if it is associated with fines for failure to vote may also be costly to administer.

With these definitions and factual propositions stipulated, we can safely claim that even if successful initiatives are "more democratic" than traditionally enacted statutes, there may be reasons for opposing such changes anyways. That is, even for a democracy zealot like me, there are other considerations that likely come into play. We may know, for example, that few people will vote in a given initiatives, or that that an initiative is more likely to be dominated by special interests than would be an enactment of the same provision by a legislature. Again, we may understand that numerous policy issues are much too complicated to be correctly handled via initiative, or that ballot questions provide insufficient opportunity for deliberation and may nevertheless be wildly expensive. We may even understand that signatures may easily be bought. 

As we actually DO know all of those things. I think we should conclude that even if initiatives provide more democracy than conventional methods of passing bills, they are a bad way to run a railroad. 

But what about recalls and referendums? They also require special elections, so many (if not all) of the same hurdles seem to arise. To determine the democratic value provided by those mechanisms, I think we will need to agree on an additional principle. 

C. It is essentially undemocratic for a populous to put up with either a provision of law or an elected official that the majority disapproves of for more than one year, and this is the case even if the law or the official has been put in place by democratic means.

No doubt, picking one year for all terms of office is arbitrary. But perhaps it will be agreed that one day is too little and six years too much. In addition, it seems obvious (especially today) that an incredible amount of damage can be done by a single unpopular leader within a year. Because of the above financial and other costs of special elections mentioned above, I believe that if recall elections are allowed within a year, an extremely high signature requirement should be required: even perhaps something like more than the votes received by the recalled individual when elected to the office in question. That, seems so high a bar, that shorter terms of office might be a preferable alternative.

While the democratic shortcoming of being stuck with an unliked representatives for a long periods can be handled either by allowing for recall elections when some percentage of the people demand it, or simply by shortening terms of office, that is not the case for many provisions of enacted policy. Not all sorts of statutes or regulations may allow for "sunset" provisions--rough equivalents of term limits. Thus, authentic democracy seems to require the possibility of repeal by referendum, which is a rough equivalent of recall. 

It will be argued that we should have the same concerns with respect to referendums regarding participation levels, domination by special interests, opportunity for deliberation, and high costs that were set forth above for initiatives? I don't think that is correct, however. In some important ways, NO is different from YES. 

Few regular citizens, if any, may have a very good sense of what will be produced by a successful initiative.# The situation is quite different with referendums: the populace may know quite well that they don't like what has been foisted upon them. After all, a new law may be having clearly deleterious affects on them personally. Furthermore, as repeal will put them in the position they held prior to the statute's (or regulation's, or executive order's) enactment, there need not be the same "What the heck are we doing?" anxiety surrounding the proceeding.

Of course, many bills are constantly being made into laws: in some jurisdictions the process is nearly continuous. As mentioned above, elections may be tiresome, costly and corrupt, and signature requirements are sure to be random. My (perhaps not even half-baked) suggestion here would be to allow for repeal votes at annual, scheduled elections, on any matter enacted within the prior eighteen months, so long as such referendum is requested by a small number (say, two hundred) registered voters. This might subject many policies to referendum, but, not only could those who dislike "radical democracy" ignore every question that doesn't interest them, if all terms of office were reduced to one year, and initiatives abolished the public could be relieved of dealing with more volatile ballot questions entirely.

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*Rick Hasen, "Assessing California's Hybrid Democracy," California Law Review, October, 2009.

# In fact, one canny observer, after moving to Oregon eventually decided that the most prudent course of action would be to vote NO on every ballot question regardless of its subject matter. I'm referring here to Richard Ellis, who came to have no use at all for initiative petitions, but, in my view wisely brings no similar case against referendums or recalls. See his 2002 book Democratic Delusions: The Initiative Process in America.

A Psychological Interlude (Or: Let Me BE the Constant Dancer)*

 

Something different today: I will dump little or no democratic theory on anybody, and hold off on my discussion of Recall until next time. Instead, here is a quick muse on the psychological toll that living in a country that is now so obviously corrupt, power-hungry, and simply evil may take--even on those who were never under any illusions about their country ever being particularly altruistic. 

I have written here before about the current administration causing me to hide under my bed,  but I should admit that was partially based on the theory, formerly held by J.D. Vance, that Trump might be America's Hitler. That, along with my half -Sephardic (Damascus), half Ashkenazy (Munich) bloodlines and the "Jews will not replace us!" business scared me. (My father was a Holocaust survivor, my mother's family was expelled in a Syrian pogram.) 

But the close Roy Cohn, Jeffrey Epstein, Stephen Miller connections  seem to have held. In any case, I have come to doubt there will be much danger from the current Administration on the anti-Semitism front. Maybe every dark-skinned or foreign born resident has good reason to worry, but it seems pretty clear to me that there is no imminent personal danger to me or my non-observant family.

As indicated, though, my bed-burrowing was only partially a result of that particular fear. Most of it stemmed from constantly watching, reading or seeing news or commentary that clearly demonstrates how awful we have become as a nation. So, maybe not Hitler, but Putin or Netanyahu. Worse than Orban or Berlusconi anyhow. 

This has not merely been mildly troubling to me, but painful, just as it is to a number of my friends. And some of these poor souls have entirely given up watching  or reading news. Of course, these decent folk likely have better--or at least less obnoxious--reasons for their psychological state than I do. Many of them think--or thought--that the U.S. was special: a beacon of decency in the world. They admired our post-WWII activities as well as our Constitution and now suffer from what they consider a precipitous fall from virtue. However we may be doing personally, as a nation pretty much everything that can be ruined has been ruined.

But how were we as a nation prior to the current thuggery? I have never been particularly knowledgeable about U.S. foreign policy myself, but have had the pretty clear sense that, at least since Vietnam, it has quite often been contemptible. And, as any regular readers of this blog will know, I think our Constitution is, in a word, terrible. Maybe OK for its day, but nearly useless today. So....why am I so upset every time I now hear the word "Greenland" or "Midterms" on the news now? And why do I (just as the asswits on Fox News accuse me each day and night) take no pleasure from any new high reached by any stock exchange or a promise of checks soon being sent to every poor citizen? 

Certainly, at least part of my response has a noble element: I don't want my (the? this?) country to hurt more people, to discriminate further or to accelerate its abuse to Earth's fragile environment. That aspect seems defensible. But honestly, my psychological torment mostly doesn't stem from anything so noble. And I recognize that the country has never been much like a real democracy, so I don't--and shouldn't--have any feeling of personal responsibility for the terrible things the U.S. is now up to. It's them, not me.

Could it be that others, both here and abroad nevertheless find each American culpable--at least to some minute degree--for the country's current degradation, and I am pained by that? It's possible, but I really don't think so. My friends, along with most people with any sense anywhere, realize that MAGA is not the U.S. 

Well, what is it then? 

Let me say first that I have no idea who the kind and likely masochistic people are who read this blog (Thanks, btw). I note that I have begun forwarding these posts to Substack, where one's reader list is public. Here, there's not even a whiff of a hint of a clue available to me, just a numeric total. So there's no way to know, e.g., if any of my readers here also (at least occasionally) listen to a bit of my music. For all I know, every one of you is a poli-sci student in the Balkans who is required by his/her instructor to read at least one example of bad American political philosophy once every two months. Or maybe it's just to help recognize awkward English.

I wonder about this, because the (also teensy, of course) number of people who do care to take in a bit of my musical rants once in a while may know that my improvs have been pretty melancholy of late. Consider this and this. Those dear souls will therefore recognize my inflamed state and may already have attributed it to things I have denied above. 

Well then, what the heck is causing it? If it's not either a fall from prior grace or a fear that others may think I sympathize with the evil, stupid grotesqueries of Trump and his associates? And if it's also not anything that is likely to personally affect me or my family or friends in the near future, what is producing my increased sickness unto death?  Am I really more altruistic than I let on? Feverish about the harm being done to those I don't know and will likely never meet?

Well, if anybody cares, I think I may have figured it out; and in my own particular case (I absolutely make no accusations about anybody else!) I have to admit that it isn't very flattering. I believe it is the result not just of hyper-polarization, which, of course, is affecting pretty much everybody in the world at present, but mostly results from what is simply an unappealing personality trait of mine. 

I want MAGA supporters to suffer, and it pains me deeply when they prevail on any matter. This, I believe, is partly a matter of wanting to be right, even hoping that a little harm befalls those who disagree with me. So, e.g., when the Dow goes up, or Hegseth kills some poor fisherman, or we "annex" another country, and this makes MAGA gleeful, I am consequently desolate. 

In my defense, while this way of reacting is sure to be more a function of childish habits of handling conflict than anything one ought to be proud of, it is also deep-seated and not anything that it would be easy for any septuagenarian to "fix."#

Again, I don't mean even to hint that more than the tiniest fraction of my fellow-sufferers share this unseemly characteristic. But in my own case, I can't deny a long-standing proclivity to revel in the failure of those with views adverse to mine, and to agonize over their successes. 

Anyhow, even if you are wildly different from me with respect to this unattractive characteristic--as you almost certainly are!--you too may benefit from figuring out precisely why the nightly news pains you so much. If, e.g., it is purely altruistic in your case, that is something you can be proud of. Perhaps that will help.

Whatever may be the causes of your own feelings of helplessness, I sincerely hope that you can benefit from a similar investigation into their emergence. (And maybe in your case--unlike mine-- attending protests or having discussions with like-minded others will help.)

So, hang in there!!  IT may not ever get better, but YOU can.

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* I apologize for not trying to explain this cryptic title, but tbh, I don't really understand it myself. It came to me in a dream....even with an accompanying tune! (And it may actually have been "ready" rather than "constant" and/or "player" rather than "dancer.")

# In a way this sort of flaw isn't very different from my rooting for opponents of the New England Patriots football team. It's partly anti-homer, partly anti-favorite, partly anti-Kraft. Undeniably, there is a nasty, contrarian streak in me that results in my rooting not just for underdogs, but against those who identify with favorites. 

Ah, Why Can't All Self-Proclaimed Democracy Advocates Just Get Along?

 

I mean, Prof. Charles Beitz of Princeton wants more and better democracy, and I want more and better democracy. He says our system is badly broken, and I agree. We both think Blacks, Latinos, and the poor are discriminated against in electoral proceedings. You'd think that would be sufficient to produce a close alliance. Furthermore, my tendency to quibble with distinguished political scientists over similar matters is hard to deny. Perhaps a dozen of my "Hornbook" reviews focus on the same stuff. Am I the problem?

The thing is, the many agreements between all these poli-sci mavens and me hide a basic disagreement regarding just what democracy is--and why anybody should want it in the first place. I generally want more democracy, while my adversaries, seeing many of the same current flaws, often claim that additional Madisonian constraints will provide the solution. 

FWIW, I've lately come to think that the best way of determining (through my own idiosyncratic dark glass) who are and who are not authentic democrats, rather than supporters of new constraints on representative majoritarianism, is whether the subject can support a robust recall provision. If they think such provisions "would likely cause more trouble than they're worth," I am likely to conclude that they have a problem with majority rule, generally. If they say that recall is actually contrary to democracy, because it allows for the overturning of fair elections, they seem to me not to have considered that constitutional provisions can (and should be) changed precisely to remove any such alleged contradictions by beginning to explicitly contemplate recall. Why is this crucial? Because people change their minds, and when they do, democracy requires that those alterations in citizen desires have real effects on government. No congruence or responsiveness--no democracy.

Anyhow, God bless the early 20th Century Progressives, who got more of this stuff right than anybody has since.

                  W. S. U'Ren (1859-1949)

Oh, and you can find my new review of Beitz's recent Tanner Lectures (along with a dozen other bellicose screeds of mine) here.

Matthew Kramer's Book on H.L.A. Hart

Once you get the Austin/Kelsen/Schmitt/Hart/Fuller/Finnis/Dworkin bug, it's pretty hard to get over it. Where do laws come from? Why should we obey them if we don't agree with them? What if a law is particularly onerous--should we still obey it, or is civil disobedience then in order? If statutes require constitutions, what, if anything, do constitutions require in order to come into being themselves? If it's some sort of mysterious "constituent power," what is it that make a particular group of people a "constituency"? 

Oh, and if vehicles are prohibited on the boardwalk, does that mean we can't skate there??

It's great stuff. And at times like now, when the entire world is rapidly descending into hell in a moth-eaten handbasket that is (unsecurely) wrapped in a smelly, rotten blanket, these questions--as well as some of their near- and distant-relations (including some in-laws!)--provide lovely distractions. [NB: to be really safe under our present dire circumstances, it may be wise to continue to hold your noses while you read.]

Anyhow, the fact that the subject matter is so fascinating is a great reason to read Matthew Kramer's 2018 book on Hart's theory of law, which I just happen to have reviewed here. 

A Distressing Realization for a Democratic Theorist

It's not particularly fun to get old. But for those of us lucky enough to have a comfortable home, sweet, patient partner, awesome doggie, regular visits from (healthy) kinder, sufficient income to live on, and all the other Maslow stuff, it isn't too awful--especially if one's health allows for continuing research in areas of interest, places to publish rants, working synthesizers, people to play music with, etc.

But, but, but...

For at least the past decade, my main academic interest has been democratic theory: what makes a system good or bad, what can be done to improve a mediocre one, and so on. The point is that I have come to realize in my dotage what many of my readers likely have known for many years. It is this:

While I suppose that a return to something like the “democracy” we had prior to Trump remains (distantly) possible, I have begun to believe pretty firmly that that any move to a more authentic or radical democracy in which each vote and person is treated equally and minorities receive appropriate voice is preposterous, an utter impossibility. And this is not just in the U.S. but everywhere that doesn’t have something that at least approximates some sort of fair majoritarianism at present (if there be any such jurisdictions).

I mean, various wealthy elites plus Madison-recognized cross-cutting obstacles of size and diversity have worked to keep something like a liberal republic in place for a couple hundred years in the U.S. and several similar “democracies,” but because of the growth of the internet, the multiplication of media sources, AI, the complete sorting of the two parties, etc., etc., it is hard to see how any future flourishing of democracy could be anything but a silly dream.

Here's why.

People of all stripes have items that are particularly important to them—say a "fair" distribution of wealth, or white Christian supremacy, or the exclusivity of a single tax on land, or a woman’s unrestricted right to choose an abortion, or complete deregulation of medicine or currency, or whatever the hell.

Stuff like that is what groups most want. You can just ask them and they will tell you. Maybe it's free health care or free guns. Maybe it's something to do with gendered bathrooms or trans athletics.

Some of these groups may join with others to make up their political parties. But getting more democracy cannot be included in their bundle of desiderata since each group can be expected to be OK with the idea of additional self-rule only if they expect that change to promote their more precious goals. And, of course, it will not do so as often as it will.

That's why the two major parties in the U.S. go back and forth on things like the Senate Filibuster: they like it when it helps them stop laws or other changes they don't want, and they dislike it when it helps their opponents do the same thing. That it (and the Senate itself!) is ALWAYS an essentially undemocratic institution is irrelevant. What's most important to most people is winning, so they want procedures that will make victory more likely.

Now, I don't deny that there could be a party devoted to real democracy (though perhaps the “Democratic Party” should not be its name). Maybe FairVote or CES will start one. But such a party can succeed only in such times and places in which it receives the approbation of those with alternative primary goals. And these other groups will always remove their support for the (real) democracy party whenever majoritarianism seems to them to present a barrier rather than a quicker road to what they REALLY want.

I’m afraid that this means that whatever electoral reform is your favorite—RCV, Approval, MMP, multi-party parliamentarianism, or even something really cuckoo, say an imagined eccentricity like “Only Unanimity Now!”—can never succeed in any significant area for any substantial period of time.

There is therefore absolutely NO ROAD for any such group...which I suppose is why the old "progressives" and "pops" never made anything but short-term, limited-area headway with their attempted reforms.

In sum, work hard enough (or cheat or get lucky) and you may eventually get your Nozickian anarchy or your Trotskyan version of Marxism or your Flat Earthism, or your militaristic MAGA homogeneity, or your Sharia, or even your Georgeism (though I really doubt the last one), but, tragically, what you will never, never get is real democracy; for that would require a majority of the people to accept that they may never get what they most desire.

Ah well.

If it's any consolation to you (it is to me, certainly), I intend to keep writing about this stuff anyhow. I mean, it remains diverting. And heck--without my studies I might never have finally learned THIS!

Schmitt IV: An Important Book, An Additional Democratic Constraint, and My Error in Schmitt III

My latest review over at the 3:16 AM Magazine “Hornbook of Democracy Book Reviews” is of Lars Vinx’s generous helping of translations of fascinating works by the Weimar-era legal scholars Hans Kelsen and Carl Schmitt on issues surrounding constitutional guardianship. Readers can watch in admiration as these two men battle over what constitutions are and what organ of “the people” should be charged with preventing them from being little more than dead letters–just a bunch of important sounding proclamations to which nobody has to pay much attention. (Saying how much you absolutely love your own particular constitution, or how amazingly brilliant the “Founding Fathers” were doesn’t count here.) Because of the many echoes of the breakdown of Weimar democracy in today’s world (for a good overview of similarities, see this), and because both Schmitt and Kelsen have very deep and interesting things to say about law, democracy, and society, Vinx has given us a very timely book. 

While his work is sure to provide intellectual benefits to nearly everyone interested in the issues discussed, I hope my readers will forgive me for taking a moment here to note that I have personally received a particular reward from reading this book (if learning of one’s errors count as a reward). 

In a blog entry here in September of 2023 (Where does the time go?!?), based on the idea of "CHOICE Voluntarism" that I developed in my book on democratic theory, I wrote that “humanness might be thought unnecessary as well as insufficient for voting status.” I elaborated this thought using the alien Vuvv found in M.T. Lawrence’s Landscape with Invisible Hand. My thought at the time was that, not only should Schmitt not have limited vote-entitled citizens to “friends” with nearly identical ethnic (etc.) characteristics who agree with each other about pretty much everything, but that there is no good reason to leave out aliens (or porpoises) so long as they have sufficient cognitive abilities. I thought (probably patting myself on the back as I did so) that even persons who disagree in and about almost everything ought to be treated equally: none should be thought better or worse than another and, therefore, all may share voting rights in the same group.

However. Reading Kelsen–and watching Vinx’s four excellent lectures on his book that are available on YouTube–caused me to come to think that I had been mistaken on that point. It’s not so much a moral issue, or that aliens (and porpoises) ought to be instantly counted as “enemies.” It’s not even a consequence of the “persistent minority” problem that suggested to Kelsen that the Hapsburg Empire, with its patchwork of languages and cultures, might not make a very good single democratic polity. It’s that the concept of equal treatment–something required by any authentic democracy–seems to depend on the similarity of average (organic) needs.

It's fine for some folks but not others to prefer pushpin to poetry, or as Everett Hall put it, to have different ideas about the relative merits of reading Bertrand Russell and enjoying a steak dinner; it’s that there may just be no commensurability regarding what various species need to survive–even for a moment. So, for example, if we imagine a quite kindly and intelligent alien (like the one depicted in the picture above) that simply could not continue to live without the daily consumption of 100 human beings, it's neither a moral nor an intellectual disability that's the problem: it's simply that there’s no good way to provide the sort of equal protection and equal treatment that every authentic democracy requires.

Live and learn.

A Shared "Solution" to a Problem Basic to Both Epistemology and Political Theory

 

A couple of hundred years into the Common Era, a skeptical philosopher named Sextus Empiricus wrote this:

Those who claim for themselves to judge the truth are bound to possess a criterion of truth. This criterion, then, either is without a judge's approval or has been approved. But if it is without approval, whence comes it that it is trustworthy? For no matter of dispute is to be trusted without judging. And, if it has been approved, that which approves it, in turn, either has been approved or has not been approved, and so on ad infinitum.

This claim that a "vicious circle" or "wheel" is utterly destructive of human claims to knowledge was popularized in the late 16th Century by another important skeptic, the essayist, Michel de Montaigne. As famously paraphrased by (one of my old grad school professors) Roderick Chisholm in 1973, Montaigne's "Problem of the Criterion," was this: 

To know whether things really are as they seem to be, we must have a procedure for distinguishing appearances that are true from appearances that are false. But to know whether our procedure is a good procedure, we have to know whether it really succeeds in distinguishing appearances that are true from appearances that are false. And we cannot know whether it does really succeed unless we already know which appearances are true and which ones are false. And so we are caught in a circle. 

For example, in order to have faith in anything like Descartes' trust that "clear and distinct"  ideas can be trusted, we must have prior knowledge that the clear and distinct notions are always true. But to know THAT, we'd have to already know some truths. And the skeptical claim is that we can't know any truths without first having some procedure by which to test beliefs. So, in order to get the method, we need to have access to some truths, but in order to get the truths, we first need a trustworthy method.#  

Why bring any of this up in a blog devoted to political theory? Well, it seems to me there is a closely analogous problem for political authority. It too has been around forever, but it was made famous by Carl Schmitt in the 1920s. Here, the question isn't What do we really know? but rather What really has the force of law?  

 

In this arena, we can also find those who, like Descartes, believe that we must get the procedure--or method--right to be comfortable with the authority (rather than the truth) of the edict. So, a proceduralist will be inclined to say that we don't have a legitimate law unless all the correct procedures, starting with the constitution if there is one, have been carefully followed. But the decisionist (like the particularist in epistemology) will be quick to point out that a decision about the authority of the constitution (and/or other "norms" relied on) will then have to be assumed. After all, what makes this constitution so special? If it's claimed that the right procedures were followed when it was enacted, what made those procedures the "right" ones? 

So, Schmitt and other decisionists held that at some point there will be no alternative but to confess that a decision simply had to be made. On this view, ultimately, nothing but decision-makers and their decisions have any real force.## And, among epistemologists, Chisholm--although he maintained that any solution to the problem of the criterion must assume what it seeks to prove--was a "particularist," feeling (as I do) that we just do know certain commonsense things.###

I think we can put the analogy this way: 

• Rejection of Normative Primacy

1. Both Schmitt and Chisholm challenge the idea that a universal, abstract system (be it legal norms or epistemological criteria) can be established in a vacuum. They argue that such a system is, in fact, dependent on prior, foundational acts or beliefs.

• The "What" Precedes the "How"

1. Pursuant to Schmitt's Decisionism, the sovereign's decision on the "state of exception" comes first. This decision is not based on existing law; it creates the legal order. The content of the law (the "how") is a result of the sovereign's ability to act and establish order (the "what"). As Schmitt famously stated, "Sovereign is he who decides on the exception." The decision thus takes precedence over the norm of law.
2. According to Chisholm's Particularism, the epistemologist begins by identifying what we know (the "what") and then uses those instances of knowledge to formulate a general theory of how we know (the "how"). He argues against the "methodist" position, which insists on first defining the criteria for knowledge before claiming to know anything. Chisholm's particularist approach starts with the immediate, undeniable experience of knowing and uses it as the bedrock for all subsequent theorizing.

To this bushel of striking similarities, we probably can add that there are particular "goods" associated with appropriate moves in both epistemic and political realms. Whether each is an intrinsic good or both are only instrumental (likely prudential) values, need not be investigated here. But it does seem clear that it's somehow better both (i) to have beliefs that are true; and (ii) to obey only those ostensible governmental commands that are legitimate.

With all this going for our analogy, one may wonder why it has received so little attention before now. (No doubt it will be assumed by my devoted readers that this must be attributed to the unmatched brilliance of the blogger. But, alas, I don't think that's the reason.) I believe it's because there are also crucial differences between particularism and decisionism as solutions to their respective criterion crises.

First, while only one of the solutions is essentially about individual knowledge, they are both inextricably connected with it...but only particularism gives any assistance on that front. What I mean is this: Even if you have settled on decisionism as the basis for legal legitimacy, you will need to know just whose decision is the one to attend to. Suppose a dozen individuals or groups are claiming to be the appropriate deciders: it doesn't seem like the belief that it's this one rather than that is much like "I am" or "2 + 2 = 4." With particularism, we have our "intuitions" regarding what seems true to guide us, but there may not be any reliable ones in the political realm. In a word, while it makes sense to be comfortable that "These are my hands" is true just because it seems to be, it also seems that we need criteria for settling on the appropriate decider.

Second, some of us may feel there is an additional "good" in play when it comes to political decision-making. (I certainly do.) It involves a recognition of the intrinsic value of self-government. Because of that factor, an autocratic decision--legitimate or not, fostering the overall good of the polity or not--must always lack what authentic democracy can provide. I suppose Cartesians may hold that what can only be provided by God's banishment of deceiving demons or dreams, is equally important. But that is a matter that remains within the same epistemic wheel. The value provided by real democracy seems to me irrespective of whether or not only democracy can give a polity "legitimate authority."

Another way of putting this is that while the decisionist approach may be thought to provide a solution to the problem of legitimacy, it does nothing for any goals involving other sorts of values. (And this is true even if we ignore justice, as I am inclined to do myself). The value of democracy, in my view, is not that it provides a more solid grounding for law, a role that arguably can--perhaps even must if Schmittians are right--be filled by a singular, founding decision, but rather that it provides the additional intrinsic good of self-governance, of most people getting what they want when the wants of each person are treated equally. And that is something that decisionism cannot do.

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#Obviously, this isn't the place for a detailed discussion of the problem of the criterion. But for those interested in the issue, I recommend a terrific paper by (another old Professor of mine) James Van Cleve called "Foundationalism, Epistemic Principles, and the Cartesian Circle" (1979).

##Schmitt actually backed away a bit from his earlier, strict decisionism in the mid-thirties. In his On the Three Types of Juristic Thought he argued that legal theory depends on "concrete order"; i.e, that something like social practices, institutions,or normal situations must underlie applicable decisions, making them not purely extrinsic to all norms. However, his view remained antithetical to Hans Kelsen's picture, according to which every legitimate edict must ultimately be deriveable from what Kelsen called a Grundnorm or ultimate rule.

###My own views on the purely epistemological matters discussed here can be found in this paper.

Gerrymandering is Possible Because Basing Political Representation Purely on the Geography of Subdivisions is a Bad Idea

Gerrymandering is in the news. As I'm sure my readers realize, cutting up a territory in (allegedly) weird ways is arguably anti-democratic, whoever does it. I inserted "allegedly" above, because what constitutes a fair, non-weird district is controversial. Ensuring, for example, that Blacks get as few representatives as possible is clearly discriminatory, but whether doing that to rich people or bookworms or landtaxers is something that should also be prohibited may not seem so clear. And suppose that sort of unfortunate outcome happens by mistake, say as the result of a disinterested computer program making its cuts "randomly":  is that still a type of unfair discrimination that should be illegal? It does seem obvious that whether or not gerrymandering to maximize the number of representatives belonging to a particular political party is (a) illegal, or (b) a response to what the other party has already done, it could be destructive of the fundamental tenet of both state and Federal democracy that requires that everybody's vote be treated equally. That will certainly happen if some districts are much  more populous than others, but the same number of representatives are sent from each.

Unfortunately, with apparently unfair districting that doesn't malapportion constituencies that way, it seems always to be quite difficult to prove that the principle of vote and voter equality has been violated.#

Consider a hypothetical country (I'll call it "Simplistan) that, like the U.S., is a Federal polity; i.e., it contains a bunch of subsidiary jurisdictions, divided geographically, only there, they are called "provinces." Suppose Simplistan is also similar to the U.S. in that it separates--at least to some extent--its executive and legislative functions on both province and national levels. But there's a fundamental difference too. While many scholars think the number of representatives in the U.S. Congress has become insufficient over time because of population growth, Simplistan sees things differently. Its constitution doesn't consider having provinces send a lot of representatives to its national legislature (its "Federal Assembly") to be a good thing. 

You see, Simplistan's founders believed that the more legislators available to muck around with lawmaking, the worse the result will be. Not only would the process be more inefficient and expensive in their view, but the result will be more confused. Therefore, while their founding mothers agreed that every citizen in each province must be represented in their Assembly, they also insisted that, so long as the executive in each province is handled by a different individual, giving each only one national representative is best. 

Obviously, Simplistanians can't have any problems with gerrymanders because their provinces aren't cut up at all.## It might seem though, that their country is terribly undemocratic, because it sends the same number of representatives (viz., 1) from each province, whether that subsidiary jurisdiction is big or small, densely populated or mostly forest. As suggested, it is clearly undemocratic to give each province one vote in the Assembly if some provinces are much more populous than others, because authentic democracy requires that each resident--and so each vote of the general populous--be treated equally. 

Both the majority of Simplistanians and their Constitution recognize this fundamental principle of democracy, but instead of handling it by having the more populous provinces send more representatives, they weight the authority of all the representatives in their Assembly. The more populous the province, the more vote-weight its representative gets in Assembly activities. 

So, every few years there is an election in Simplistan in which each province elects one Executive and one Assemblyperson. The math here is unsurprisingly simple, and it would almost make for a good arrangement if one individual were actually capable of reflecting the views of hundreds of thousands--perhaps millions!--of constituents. But even if the Assembly members were afforded large staffs in sizes that also reflect the number of votes received (and each member were also some incredible combination of deep human empathy and AI-like comprehensiveness and speed), there would be a remaining problem. Assembly activities don't consist solely of voting and constituent service. There's also speechmaking, committee work, and various other sorts of deliberative activities. It would be extremely difficult--if not impossible--to mete out all of the various types of "legislative authority" in anything like mathematically appropriate bundles. 

The Simplistanians ignore that difficulty, and its a crucial omission. It's hard to deny that democratic representation involves other aspects besides ensuring the ultimate equality of the populace in vote weights. Thus, in a democratic polity in which more than one representative is sent from various subsidiary districts, even if the clever Simplistanian trick of weighting votes in the Assembly by the number of votes received by the representative voting is utilized, multiple representatives from each province will be wanted, so gerrymandering will be a problem whenever geography is the sole determinant of who is in which political district. In other words, if Simplistan were to decide to start sending more than one representative from any of its provinces, if the subsidiary jurisdictions are geographically determined and exactly one winner is to represent all the voters in each of these sub-districts, the precise placement of the district lines will have immense effects on who gets elected. Arguably, this is quite likely to be unfair even if vote weights given each individual are equal. 

Because of this problem, democratic theorists have long pushed either for neutral--rather than partisan-oriented--methods for cutting up subsidiary federal entities, or for replacing single, winner-take-all geographical sub-districts with multi-winner arrangements. 

As I have indicated in a number of blog entries here, I think Approval Voting is best for single-winner elections, and, to their eternal credit, Simplistanians use that method to elect both their Executives and their Assemblypersons. In my view, however, Approval is not a particularly good choice for use in district elections intended to produce multiple winners. Fortunately, there are a bunch of good alternatives. Some scholars prefer ranked choice voting. Others push for a form of party list or other type of Proportional Representation. I think a number of these would be excellent alternatives to our current system, but, FWIW, I  believe that the simplest and best choice is what's called the Single, Non-Transferable Vote ('SNTV'). 

Under SNTV, a procedure that can be used only where there are to be multiple winners, every resident gets exactly one vote, and if there are to be, say, ten representatives elected, all and only the top ten vote-getters win seats. What could be simpler?

           

SNTV has received a ton of criticism over the years, though, and I don't deny that the objections have been on point. The scheme has caused sometimes sever problems in various countries that have used it. The thing is, all those defects have resulted from the fact that the jurisdictions in question have failed to understand what the Simplistanians grasp: for democratic principles to be enforced, the votes of all representatives in any Federal legislature must be weighted by the votes received by such legislators when they were elected. If that principle had been in place, none of the problems resulting from past uses of SNTV would have occurred.###

To sum up, having purely geographical subdivisions with single-winner elections is almost  bound to be undemocratic, whether intentionally or not, and this will be so whether or not (allegedly) weird lines happen to be produced on a "first strike" or retaliatory basis. After all, fighting fire with fire will almost always result in more people getting burned. The only solution is to get rid of geographical, single-winner legislative districts entirely.

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#For an interesting recent discussion of whether federalism can be expected to provide protection against a national autocracy that engages in deliberately discriminatory gerrymandering--or, perhaps, will just make things less democratic at home, see James Gardner, "Can Federalism Protect Subnational Liberal Democracy from Central Authoritarianism?" here. (As one might expect, I object to the definition of "populism" as a necessarily anti-democratic force in the paper, but I suppose the author's take is pretty much par-for-the-course at this point.) There is more on the matter of malapportionment in my review of Nick Seabrook's recent book (ostensibly) on Gerrymandering, which can be found here.

##Of course, if the provinces themselves were created by the central government THEY might have been the product of an undemocratic line-drawing that gave less populous provinces as much power in governance as densely populated ones.

###See Chapter 8 of my book for a discussion of both the historical shortcomings of SNTV and my claim that the problems it has no doubt engendered would never have occurred if the authority of individual representatives in the legislatures to which they have been elected had been weighted by the votes they received in those elections.