Willmoore Kendall II: How a Conservative Populist Became a Majoritarian in Name Only

 

Since writing my previous piece on Willmoore Kendall, I have read Christopher Owen's recent biography of that conservative iconoclast in anticipation of writing a review of it for 3:16 AM. That piece is now online. In Kendall I, I focused on "absolute free speech": Here I will mostly write about "absolute majoritarianism."

Kendall was bombastic. His life was certainly interesting, and Owen's coverage of it is generally competent and fun to read. As I mention in my review, however, it seems to me over-generous in its assessment of Kendall's writings on political theory. I will today mostly confine my discussion of Kendall's work to his allegedly permanent "majoritarianism." A useful place to start seems to me to be to take a close look at the extended argument he had with the political scientist Herbert McClosky.#

In 1949, McClosky published "The Fallacy of Absolute Majority Rule" in The Journal of Politics. In spite of its title, the paper is an excellent defense of garden variety  majoritarianism. Indeed, it's a classic statement of the view that 50% of the populace plus one must get to decide nearly every public policy issue. This implies a normative equality of votes and voters. But McClosky is aware that it might be problematic to let votes decide everything. For example, they ought not be capable of allowing a jurisdiction to ditch democracy for dictatorship, continuing the enslavement of Blacks, or providing only half-votes for women. So, McClosky takes the position (as I do in my book) that certain traditional "rights" are not exactly natural or endowed by any creator, but are, rather, required by democracy itself. That is, a correct theory must take the value of self-government to be both primary and intrinsic. 

This seems to me a simple and unambiguous way to reach what I have called "distilled populism," and it is a view that one would expect someone who Owen insists was "a majoritarian until his death in 1967"* to smile on--especially since the sole mention of Kendall in McClosky's paper appears in a footnote containing a quite complimentary reference to Kendall's book on Locke. 

Instead, Kendall's 1950 response in the same journal, "Prolegomena to Any Future Work on Majority Rule," is both defensive and prosecutorial. While McClosky seems to have regarded his paper simply as a contribution to the ongoing political debate on "absolute majority rule," Kendall's response, suggesting that McClosky has no idea what real majoritarians mean by the term, suggests that he felt attacked. Notably, Kendall doesn't mention the name of a single majoritarian who he believes shares his understanding of majoritarianism: without any backing citations, he simply implies that only one with no real understanding of the field could make the sort of arguments found in McClosky's paper. 

Where, specifically, does Kendall think McClosky goes wrong in defining the relevant positions? Through the first two/thirds of Kendall's dense and obscure response, it's difficult to tell, but the core methodological objection seems to be that McClosky conflates the problem of the method of community decision-making (which is where McClosky is said to think majority rule properly belongs) and the problem of the standard of legitimacy by which community action is judged. Kendall insists these must be rigorously separated. And when we reach his denouement, we may begin to see that, strictly speaking, it is not majoritarianism that Kendall advocated even at that time, but a kind of communitarianism. Kendall may personally have at that time supported a method that utilizes majority rule to find office and policy winners, but there's an important sense in which, in his view, that fact is unimportant. What Kendall thinks matters much more is how this or that community feels such decisions should be reached. That's because such groups are--and, he thinks should be--the final arbiters of whether, e.g., there is a right to free speech or women are allowed to vote.

In his 1961 "Epilogue on Absolute Majority Rule,'" Thomas Thorson attempts to dissolve the debate between McClosky and Kendall by showing that absolute majoritarianism is logically self-contradictory. Thorson argues that a majority could theoretically vote to abolish the majority principle, leaving the theorist in a logical paradox. But while this might be a fatal blow to a purely proceduralist majoritarian, it misses the mark here. McClosky explicitly made the majority rule principle immune to majority overrides. And, as we shall see, Kendall is was never a procedural majoritarian; he was a Schmittian communitarian. For him, the 'Majority' was not a mathematical abstraction but the political manifestation of a homogeneous community, Schmittian 'Friends' acting to preserve their shared way of life. Thorson’s logical paradox is irrelevant to a thinker for whom the community’s existential survival is the primary concern. Furthermore, in my view Thorson joins Kendall in attempting to decide whether the idea of majority rule is  'internal' or 'external' to democracy. For it seems to me preferable to understand the concepts of both popular sovereignty and the normative equality of persons as foundational axioms that must be adopted by authentic democrats. To debate whether these principles are inside or outside the system is to miss the point that they are the very terms of the system's existence. Taking a precondition of some institution to be either within or outside it is misleading because in an important sense, axioms must be both.🔑 What is crucial for our purposes is that while McClosky makes these principles essential to any real democracy, for Kendall what value they have is entirely dependent on the attitude of the relevant community, their status as "symbols."

Interestingly, the antagonism between Kendall and McClosky bubbled to the surface again in 1958, when McClosky put out a supposedly purely empirical paper+ in APSR that concludes (on the basis of polling!) that American conservatives are much more likely to be isolated people who think poorly of themselves, and are submissive and lacking in confidence. He also "finds" that conservatives are more commonly less informed than liberals. Kendall clearly knew who this paper was aimed at and responded to its veiled insults with incisive vigor. He points out a number of its many inappropriate inferences, eventually declaring the success rate in this "study" is only about .250 which he quips "simply won't do for a lead-off man in the majors." In McClosky's condescending and above-the-fray rejoinder, Kendall's name is not mentioned. He simply insists, somewhat absurdly, that any objections to his study will have to be settled "by further empirical research, not by rhetoric or point-scoring."ع 

For our purposes here, what is more important than either Kendall's bellicosity or his treatment by academy liberals, was his overt communitarianism--and the fact that it is visible  even in writings that preceded his Prolegomena. Both of his 1939 Southern Review papers, "On the Preservation of Democracy for America" and "The Majority Principle and the Scientific Elite" also suggest that it was never standard majoritarianism that he was backing-- even in what is supposedly his most doctrinaire majoritarian period. While these heterodoxical aspects clearly took  increasingly important places in his theory as time passed, but it is easy to see their presence in nearly everything he wrote subsequent to his dissertation on Locke. 

Over time, the importance to him of Method (how we vote) continued to diminish, and Legitimacy (what obligates us to obey governments) played a more and more central role. The former was  eventually demoted to little more than a technical detail, while the latter came to be a main facet of what he and Carey called "Shared Symbols," that which they claimed to be responsible for the existence of a discrete "people." Such symbols were what Schmitt had earlier described as a group's "positive constitution." For both men, written documents must be secondary.

Grasping this connection to Schmitt helps one understand exactly what it is in Kendall's thought that is contrary to traditional majoritarianism. In essence, it is everything that follows from his insistence that no voting can reasonably take place unless it is undertaken by a group already sharing "basic beliefs." Or commonality. But it follows from any claim of that type that actual voting is entirely hollow, nothing but a show. 

It is important to recognize that this communitarian view was not original with Schmitt. In fact, McClosky devoted a 1949 paper to a A.H. Stephens, a 19th Century American "particularist" who took a quite similar position. 

What made Stephens, the Vice-President of the Confederacy that seceded from Lincoln's Union, a particularist was his prioritizing of principles supported by particular communities and regions over universally held views. Much of McClosky's paper is a discussion of whether it is states or citizens that are the real "sovereigns" that gave force to the U.S. Constitution. But Kendall must have understood that McClosky was making veiled references to Kendall's own pseudo-majoritarian views. 

After Kendall's death, Harry Jaffa again pointed out the Stephens/Calhoun influence in his review of the Kendall/Carey book on American symbolism. Kendall’s "majoritarianism" became functionally indistinguishable from the "concurrent majority" or "nullification" theories of the Old South—systems designed specifically to allow a local "homogeneity" to veto a national majority. Surely, even those who continue to think the South ought to rise again, will not count either Calhoun or Stephens as a majoritarian.

In his earliest public misgivings about majority rule, Kendall claimed to be following Rousseau in thinking that it is only small localities that can be democratic, based on the theory that only neighbors can be expected to be sufficiently intertwined. Whether or not Kendall explicitly aimed to exclude Blacks from decision-making, his insistence on local homogeneity provided a theoretical basis for doing so in many places. And by prioritizing geographical proximity, he could ignore the fact that neighbors often hold fundamentally divergent views. 

But if decentralization can't be depended on, what can? Kendall came to hold that it was deference, not to the Articles of Confederation (as Stephens had argued) but to the 1620 Mayflower Contract, and the late 1780s Federalist Papers (at least on Kendall's peculiar reading of that work). With respect to the former, Owen's Kendall claims that at the time of the Compact, the American people were religious and concerned with justice, but had little interest in individual rights or equality. The Mayflower Compact was nevertheless taken to be 'an exercise of freedom' by its signers and should be understood to have created a community. Kendall also claimed that the Fundamental Orders of Connecticut (1638) and the Massachusetts  Body of Liberties (1641) played a part in the incorporation of a "higher law," one that stressed the importance of deliberation and the need for a people to be virtuous and seek justice. 

But according to Kendall, individual rights weren't considered essential to the colonials until the late 1700s, and when this did occur, those rights weren't actually thought of by "the founders" as Lockean--universal and inalienable--anyhow. Rather, they were understood merely as protections that a legislature at its discretion might or might not enact after sufficient deliberation. In this way, Kendall could claim that putting a Bill of Rights in the Constitution was inappropriate. Rather, it was thought to have been foisted on the nation for entirely political purposes by such miscreants as Thomas Jefferson.

The pretty picture of a deliberative pilgrim community allowed Kendall to maintain that neither majority rule nor individual rights should be the last word in democracy creation. This allowed him to alter his view of Locke. Now, he said there could be no possible resolution of the tension he had earlier seen between the two  Lockean positions. Thus, when Kendall "revisits" his dissertation on Locke (a work claimed by Owen to have been so brilliant that it made his career possible) he decides that his entire manner of posing the problem was mistaken. On his new view, Kendall took Locke to be hiding his true goal of justifying personal rapaciousness behind a veneer of caring about democracy. Following Leo Strauss, Kendall suggests replacing his earlier  thesis of there being an unresolved tension between natural rights and democratic authority  that required an elusive "latent premise" with a  picture according to which the 18th Century philosopher was essentially Machiavellian. On Kendall's view, Lockeans (read: all liberals) should no longer be thought of as merely misguided. Any nods they make in the direction of God or justice are attempts to disguise their true desire to undo all the good that Christian decency has brought to the world.

At the end of his career, Kendall's publications thus began to sound more and more like Schmitt's Political Theology. In fact, after Kendall's discovery and absorption of Strauss, to call him a backer of democracy at all requires stretching the meaning of that term far beyond its customary meaning. 

We should be fair though. To his credit, Kendall was an early member of a large group of 20th Century political scientists who have stressed the importance of public deliberation prior to the enactment of policies. In fact, it was principally for that reason that he preferred Congressional policymaking to both Executive edicts and Judicial opinions. That is a view that might even be considered Wilsonian today and is contrary to the "imperial presidency" and "unitary executive" now pushed by so many Trumpians. And his co-prediction with Austin Ranney that the APSA position on "responsible parties" would lead to toxic polarization was correct--however valuable such a change might have been if the U.S. had been moving toward a true multi-party system. 

It should also be remembered, however, that any Kendallian requirement for "consensus" must be inconsistent with majority rule. While even a conservative hero and democracy-despiser like William Riker was willing to let simple majorities "throw the bums out," for Kendall, the goal was to prevent bums from ever gaining admission to office in the first place. And it eventually seemed to him that the best way to do that was to insist that only those who shared his ideology should ever even be qualified as potential candidates. It became central to his position that granting government the power to exclude dangerous "outsiders" is not only necessary condition for public safety, but is completely consistent with the principles set forth by Publius in the Federalist, at least as Kendall finally understood that fascinating and still controversial work. In sum, his final, McCarthyan take was that anybody who disagreed with him on any of a dozen central principles ought to be deemed a dangerous outsider whether or not such dissident ever threatened violence or had even pressed for significant changes to the status quo. By his lights, any such person should be declared an "enemy of the people" and severely punished. Just being wrong or sufficiently "different" from most of those living in his idealized village of the United States should qualify one for deportation. 

I think, therefore, that if they had cared to look, it would have been relatively easy for Owen and other Kendall admirers to see that their protagonist's final politico-religious position was not majoritarian at all, but a template for excluding from political life anyone who fails to share a necessarily homogeneous community's 'basic beliefs' — however those happen to be defined, and by whoever happens to be doing the defining. Such a view obviously provides a handy support for unvarnished authoritarianism. Sadly, these days, Kendall's disciples can be found everywhere.

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#  While Kendall famously enjoyed fighting with everybody, the duration of his tussle with McClosky suggests a personal element which may have been exacerbated by McClosky's apparent unwillingness to mention Kendall by name in his writings--even in published works that were obviously aimed at that rival. As both men were longtime friends with Saul Bellow for many years, it's possible that there was something personal going on among the three that had nothing to do with democratic theory. Unfortunately, if so, Owen missed it in his bio.  It is well known that Kendall was the model for the main character in Bellow's story "Moseby's Memoirs," but if it has been suggested that McClosky was used in any of Bellow's fiction, I have not heard about it.

*That's how Owen puts it in his chapter on Kendall in the 2019 edited volume, Walk Away: When the Political Left Turns Right. (Lexington Books).

🔑There's an excellent explanation of this point in the opening chapters of Everett Hall's Philosophical Systems: A Categorial Analysis.

+ "Conservatism and Personality." Also telling is McClosky's 1964 paper, "Consensus and Ideology in American Politics" in which he pauses to cite a talk on McCarthyism that he gave at the American Psychological Association but never subsequently published. Surely Kendall knew to whom those arrows were aimed, whether his name was mentioned or not.

عMcClosky's brief and dismissive response is reminiscent of the Darwin/Huxley handling of Samuel Butler's many objections to Darwin's theory of evolution. Butler's Lamarckianism may have been fundamentally mistaken, but he was able to find some errors in Darwin's work along the way. In any case, he certainly deserved better than: Let's just treat these objections as the ravings of a nonentity and ignore them.

𝜳 I find it interesting to consider what Kendall may have thought about the Salem witch trials...or Arthur Miller's play about them. Were those prosecutions (which, of course, have often been compared to McCarthy's treatment of "collaborators") acceptable if "the community" was all-in on them? Unfortunately, there is nothing in Owen's biography about this question.

What Comes First in My Democratic Theory

 

Theological discussions have long been riddled with arguments between those who think God created humans and those who think humans created God. And, while it may not make a ton of sense to claim that although "the creator of the universe" didn't actually make human beings, It/He/She/They was the first to discover them, lots of people have believed that God was found by people rather than made up by them. 

It's unsurprisingly difficult to resolve a matter of this four-type ambiguity, largely because of the age-old battle between those who hold that ideas are constructed out of independent external things in the world (realists) and those who insist on the contrary that what seem to be outside "things" are actually fabricated out of ideas (idealists). Without fail, this fight fires up again in every new generation.

No doubt my readers will be delighted/relieved to hear that I don't intend to get into this hoary and likely unsolvable debate. Surely, I am incapable of  resolving it to anybody's satisfaction (including my own). But I must concede that, strange as it may sound, I (and everybody else) who writes about democratic theory has -- perhaps unconsciously -- assumed one (or more) positions on the various chicken/egg questions that can't fail to arise even in political philosophy. 

So, for example, I start my book with the recognition that one has to start somewhere, and in my view authentic democracy requires taking the position that what makes a public policy or elected official the "right one" is a matter of what a majority chooses. That is, there is no "correct" public policy that is independent of what the people want. Democratic policies are thus a function of prudential values -- what people expect (correctly or  incorrectly) will be best for them, given their options. This position makes me hostile to a popular view called "epistemic democracy." I explain why here.

On the other hand, I am ready to allow that the decision regarding "what came first" might not be the case for moral values. There, I say, it may well be that the moral truths are "out there" independently of what anybody happens to think. I'm agnostic about that myself: I simply don't know. But whatever may be true with respect to "objective morality," I don't believe that what makes something an actual law is a function of any alleged ethical truths that happen to be out there in the universe independent of what anybody wants or thinks. That decision makes me a "legal positivist." 

This stuff is hard to make clear -- at least it is for me. But maybe this music will help?

Should Democracy Backers Now Love "States' Rights"?

 

"Progressives" have long been wary of "states' rights." That take is unsurprising, since "constitutional arguments" on their behalf have often been a relatively inoffensive way of saying things that are really meant to push for greater "discrimination rights" or "vote suppression rights"  or "regulation refusal rights" or "'right to work' rights." The idea was pretty simple: when the national government would require things like integrated schools or the ability to get an abortion, right-leaning members of Congress, with the assistance of their even farther right state legislatures, would resist with every argument possible. As a result, "states rights" came to be associated among Democrats with things like celebration of the Confederacy, George Wallace, Jim Crow, and black lung disease. 

But, you know, times change. With Donald Trump in the White House doing everything he can not only to eliminate democracy but to deregulate the country into a large, gold-trimmed, smelly dumpster fire (with his name plastered all over everything except the few remaining windmills), Democrats are starting to depend on state governments to stop him wherever they can. 

Is this u-turn necessary in our crisis? Do we need states like Massachusetts and California to use whatever power they have to, e.g., keep elections at least a smidge democratic? Or should we continue to recognize that no system can really be majoritarian where there are political subdivisions with the authority to muck up elections? 

Stephen Legomsky has just published an important book that takes the latter tack. He argues that, Trump or no Trump, state power should not only be downgraded, but state governments should be eliminated altogether. I have reviewed his fascinating work here. 

Meanwhile, here's what I think is happening to the country whichever choice we make regarding political subdivisions. 

Willmoore Kendall, Irascible Drunken McCarthyite, YES; Brilliant Scholar, NO. Part I. Socrates, Mill, and Free Speech

 

I've spilled considerable ink to date on Carl Schmitt, having reviewed several books on the Nazi jurist/theorist and mused about his lasting effects on subsequent right-wing movements. I've also spent a little time talking about Curtis Yarvin, a monarchist who is currently a darling of the new right. Now, in anticipation of reviewing a fairly recent biography of Willmoore Kendall, I intend to devote a few blog entries to that "conservative" hero, who was a teacher, close friend and colleague of William F. Buckley, and who also seems to have been accepted by nearly everyone who has read him as a formidable thinker who was, unfortunately for political theory, derailed by his inability to pass on any available drink or attractive woman.

The Man and the Myth

Kendall was born in Oklahoma in 1909. His father was a radical preacher, whose blindness is said to have made him resentful and tough on his precocious son. Willmoore graduated high school at 13 and then enrolled at Northwestern, but things didn't work out for him there, and he transferred to the University of Tulsa. In 1932 he became a Rhodes Scholar, spending  a couple of years studying under the historicist R.G. Collingwood at Oxford. 

He metamorphosed from Trotskyite to majoritarian liberal during the years before he completed his dissertation on John Locke at the University of Illinois at Champaign-Urbana in 1940. Reportedly, it was covering the Spanish Civil war for the United Press that resulted in his shift toward the vehement anti-communism he maintained for the rest of his life. 

Kendall got a couple of brief professor gigs before the Second World War, at which time he started doing intelligence work for the U.S. Government, particularly in Latin America. (I can't help but think of him as one of the characters duped by  Mr. Wormold, the "atomic" vacuum cleaner salesman in Graham Greene's Our Man in Havana.) After the war he got a very nice position at Yale where it is said that his students loved him and everybody else hated him. (Yale eventually bought him out of his tenure for a tidy sum.) One of his students in New Haven was William F. Buckley, and the two conservatives took to each other almost immediately. Buckley was very rich, which allowed him to start The National Review after graduating, and he brought his old mentor on board (where Kendall again fought with everybody, came to meetings drunk, and had numerous affairs). Along with Buckley, Kendall was one of the few "intellectuals" to stick with Congressman Joe McCarthy regardless of the latter's often absurd and cruel accusations according to which anybody who had ever befriended a socialist should, at the very least, lose their livelihood.

In 1963, Kendall launched the Department of Politics and Economics at the University of Dallas, and remained there until his death in 1967. He had, at the time of his passing at 58, never written the "big book" everybody had expected of him for so long.

I consider his dissertation, which was later published as a book, to be the best thing he did complete. It focusses on a legitimate issue: the tension between Locke's democratic majoritarianism and his belief in natural rights. I won't discuss that issue at present, however, but will save it for Kendall Part II. Here, I will concentrate on Kendall's use of Plato's Crito and Apology dialogues--and of the execution of Socrates generally--to argue against free speech and "open societies."

Plato, Yes; Socrates, No

As indicated above, Kendall liked to fight, and in his 1959 paper, "Was Athens Right to Kill Socrates?" he starts by complaining that pretty much everybody who has ever written about Crito seems to have ignored what it actually says.#  He accuses them of disdaining close study in favor of using the tragedy of Socrates' sentence as a propaganda device. These faux scholars are all taken to claim that the moral to these esteemed dialogues is that there should never be any limitation to freedom of speech (because, after all, if Socrates' right to annoy Athenians by questioning them had been unabridged, there would have been no charge, no conviction, no sentence, and no drinking of hemlock). 

Now, it is of course true that if Athens did not want to limit speech, Socrates would not have been poisoned as a result of this case. But even if we agree on both of these: 

• It would be a good thing if Socrates had not been poisoned by Athenian authorities; and

• If Socrates had been provided with absolute freedom of speech in Athens, there would have been no poisoning of Socrates by the city; 

We cannot derive the conclusion that:

• Therefore, there ought to have been no limitations on freedom of speech.

Logical Shortcomings

Why does this conclusion not follow? There are several important reasons. First, while we may agree that Socrates' conviction was a downside of the Athenian laws at that time, there may have been a number of worse outcomes if their speech laws had been looser than they they were. That is, even if everybody agreed that Athens was a better place before Socrates was snuffed out (which, of course, they didn't) that particular outcome was just one particular, well-known consequence of the applicable laws--and one that may have been swamped by numerous others. 

That point is made (though somewhat confusingly) by Kendall, but either he never realized or preferred not to mention that Mill would certainly have agreed with it. A confirmed consequentialist himself, Mill argued for freedom of speech only to the extent that it wouldn't result in net harm to any jurisdiction. I will not enter  here into the matter of just how free speech should be in order for utility to be maximized. My point is rather that this question remains open, however one feels about Socrates' conviction and punishment.

Second, as Kendall himself seems to understand and acknowledge at the beginning of his article, laws and morals are not identical. As he puts it,

 "Ethical inquiry is prior to and different from political inquiry...and, in consequence, certain to call for its own techniques and procedures, as, in its turn, political inquiry...will." 

So, even if all were to agree (which, again, we don't) that Socrates' punishment was immoral, it might still have been required by law. In that case we might hold that while it was (legally) correct to put this troublemaker to death, there is nevertheless a moral obligation to change that law. Obviously, if (i) there is no conflict between putting Socrates to death and any known moral principle(s) (something which, presumably, Kendall believed in spite of his late turn toward Christianity); and (ii) the applicable laws indicating that whatever the jurors concluded should be done to the accused is acceptable, then we again have no reason for restricting speech. For surely correctly passed laws that are not evil should be obeyed. One might, again, be sad about Socrates' passing, but there need be nothing essentially wrong with either the sentence or its effects, either from moral or legal standpoints. It would be no different from sorrow being produced by attending the sentencing of a murderer one happens to be in love with.

Because there are various ways to understand "good" in our first premise and "ought" in the conclusion above--morally, prudentially, and legally--the argument needs considerable cleaning up to be successful. Kendall is very unclear about this matter, but my critique of the above argument is consistent with everything he says, and there is little doubt that he would assent to it. The problem is that he accuses both all those who don't think Socrates should have been put to death and all those who believe in the liberalization of speech laws of being fooled by this equivocal syllogism--without providing a single example of either a political theorist or Plato scholar who actually was confused in the way he specifies.

Again, as Mill understood ethics, it is absolutely inseparable from utility. We have seen that Kendall distinguishes morality from legality, and in various parts of this paper he also at least seems to understand that prudential and moral considerations are different. However, no reason he adduces for allowing societies to be impermissive is free of utility claims. Indeed, he simply seems to agree with Mill that an absolutist stand regarding speech would result in net harm. 

Perhaps there were numerous "lefties" in the 50s who went farther than Mill on this matter, but Kendall doesn't mention anybody else who ever opined on speech in this paper except for a brief mention of Karl Popper. The thing is, Popper also didn't hold that it was never right for a government to limit speech. In his The Open Society and Its Enemies he specifically warns that unlimited tolerance of certain types of speech could, paradoxically, lead to speech suppression, which is, incidentally, also an argument that Kendall makes in his paper. The difference, of course, is that Popper thought the Athenians had made the wrong choice, claiming that Socrates was not himself an intolerant type, and, as a result, total utility was severely impaired by his being put to death. 

I have no brief to file for either party on the matters of either the net utility costs/benefits or the strictly moral culpability of this execution. My interest here is solely in showing the deficiencies of Kendall's paper. And in that regard, it must be pointed out that Popper was no more a "simon-pure" free speech absolutist than Mill--or Kendall himself.

But there is more, a Third problem with the syllogism above. And it is a problem that should be evident to any good majoritarian. It is that there is actually a reason for requiring or prohibiting various activities that involves neither morality nor (ex post) utilities. A resolute democrat will hold that most--though not all--government policies should be those that the citizens want, even if they are wrong in their estimates of net utility effects. If this democrat also believes in an objective morality that allows her to know that some majority-desired policy is wrong, that may be a good reason for imposing limitations. For such a democrat, citizen wants will take precedence over arguments for constraints stemming from utility estimates claimed to be better or more expert. But moral considerations may be given the final word.

My Own Take on Democracy*

For what it's worth, I am not such a theorist. I doubt the infallibility of my "moral sense" at least as much as I do the "expertise" of sociologists, economists and other pundits regarding what we should expect if a vote goes one way or another. 

But I believe in the applicability of another category of constraints. In my view, certain limitations are imposed on what a society may enact by the nature of democracy itself. For example, real democracy requires equality of votes and voters, so certain types of prejudice or unequal treatment may not be passed into law. In addition, there can be no real democracy without free political speech, association, assembly and press. (How and the extent to which those must be protected are difficult issues.) 

So, I add yet another type of "good" and "ought." to the premise and conclusion of the simple argument above, which, of course, makes commission of the fallacy of equivocation even more likely. And it might be argued that Socrates' activities should have been protected by those limiting factors (i.e., political rights), though that argument would not be a simple one. Again, I won't be making any such claim here. I would simply present my democratic principles and, given their acceptance, leave the matter of Socrates' execution to Plato scholars. For two things I am not are historian and Plato scholar. 

In spite of his self confidence (not to say arrogance), Willmoore Kendall closely resembles me in also being neither historian nor Plato scholar. I will leave to my readers the determination of whether he was much of a political philosopher. I just hope their assessment will not be based on the praise lavished on him in right-wing organs or the assumptions elsewhere that such praise, being so widespread, must have been merited.

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# It's worth mentioning that Kendall says much the same thing in his dissertation about prior Locke scholarship--that not only has nobody ever fully come to grips with Locke until Kendall, but that most people who've written on Locke must not have bothered to read him. I will also note that he doesn't mention the name of a single allegedly confused Plato scholar in this Socrates paper (unless Karl Popper is thought to have been one).

* The most complete statement of my views on democracy can be found in my book and in these two papers: 1 and 2. But for those who are interested there is also a paper on voting rules and one on Eckstein and political stability. And, of course, there's a ton of additional (less thoroughly baked) material to be found in this blog.

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.

------------------------------------------------

*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.

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!