Jack Lively and William Nelson on the Natures of Democracy and Popular Sovereignty

 

 

I was reading philosophy back in the late 70s and early 80s when the books discussed here came out, but I was not reading anything on democracy or political philosophy until a constituent of a legislator I was working for recommended Henry George's Progress and Poverty. (This elderly gentleman wrote my boss a compelling letter about the unparalleled virtues of the land value tax and included the information that "I am a Georgeist, my father was a Georgeist, and my grandfather was an abolitionist." Naturally, the legislator in question never looked at this letter but simply passed it along to me for a response. I didn't just write this constituent back though: I ended up hosting weekly single-tax meetings for several years at my second-floor apartment in Allston. The discussions there bore some resemblance to those of The People's Front of Judea in Monty Python's Life of Brian. But my attendees had a considerably higher average age, and I'm not sure now how all of them got up the stairs. 

Although I no longer spend much time on books or magazines with names like "Land and Liberty" or "The Power of Soil, Our Common Birthright," as readers here have surely guessed, I now read a lot of political philosophy. But back in the 1970s (to paraphrase an Incredible String Band song), my philosophy readings were still focused mostly on metaphysics, epistemology, and Spinoza (on whom I wrote my dissertation), as I continued to frantically cast about for somebody (though maybe not Spinoza or McTaggart) to prove that people are immortal. 

I have cleared my throat at such excessive length before beginning this piece as a way of excusing myself for never having seen a word from two fairly popular (and efficiently titled) books on democratic theory from those days: Jack Lively's 1975 Democracy and William Nelson's 1980 Justifying Democracy. While I have by now gotten through quite a bit of the literature discussed in those two books -- writings by people like Bryce, Schumpeter, Arendt, Dahl, Arrow, Eckstein, and Tullock/Buchanan -- I figured it was past time to have a look at Lively and Nelson themselves, if only for remedial purposes. Having now had this look, I have a sense where both philosophers seem to me to have gone wrong: their opening definitions led them astray and really could not have failed to do so.

Even if authentic versions of democracy must depend on the equality of votes and voters, democracy should not be deemed to be identical with equality, political or otherwise. That is Lively's initial error. But neither should the essence of democracy be taken to involve a mechanism that will produce morally correct decisions. That is Nelson's early misstep. These mistakes are fatal because, once missed, the crucial connection between democracy and popular sovereignty cannot be subsequently forced in. If you try to separate the concept of democracy from the idea of residents getting what they want, there's a good chance that you will end up with something that is entirely undemocratic.

To begin with Lively, his remarks on faulty attempts to cure perceived shortcomings in majority rule for persistent and apparently powerless minorities are quite sharp. I speak here of his critiques of 'solutions' like Dahl's "Minorities Rule" and the idea that numerical vote deficits might be offset by somehow harnessing the greater desire intensities of minority voters. Lively hammers home how comfortable the status quo is likely to be for well-to-do elites and why that makes veto power sufficient for most of their needs. He specifies the various ways that small, wealthy groups have been able to handle their own lack of numbers and how difficult it can be to dislodge any group that can afford to produce vetoes at will, noting that they may need little more than that ability to remain ascendant. Thus, for the Elon Musks of the world, "majority tyranny" has always been something of a paper tiger. Even if it were true that poor, greedy, and ruthless voters always comprise the majority, there are plentiful means for the wealthy to keep them at bay. 

These empirical diagnoses and the critiques of various snake-oil cures are important and correct. But the conceptual error lingers. The problem for Lively's overall analysis runs deeper than the observation that if equality is always illusory, there may be no democracies anywhere -- an uncomfortable conclusion the analyst might soften by treating democracy itself as a matter of degree. The more fundamental difficulty is that political equality cannot distinguish democracy from forms of rule that have nothing to do with it. Consider Hobbes' state of nature. It gives everybody roughly the same political power -- i.e., none. Nevertheless, that jungle is not only not a perfect democracy; it is as far from a democratic polity as it's possible to be. Similarly, if we consider a monarchy in which the king has just been beheaded, making it currently unclear how or where public policies will be enacted or enforced, we again may have something like political equality, but nothing like democracy. 

The same failure of intentionality appears in government by sortition, where random individuals are chosen to make and execute policies for everyone. In any such jurisdiction, if the citizenry gets what it wants, it will be largely accidental.# When Lively makes such assertions as "there are some circumstances in which limits on majority decision may be set on democratic grounds" or "the principle of political equality can be violated by majority decision" it should be clear that, by making equality both the main goal of political theory and the basic criterion for democracy (rather than just one necessary condition for its existence), he has doomed his project from the start. 

To be democratic, the procedure for determining public policy must be focused on getting the majority what it wants. That is consistent with some democracies being quite unpleasant, so there may be good reasons for limiting democracy's scope. But as I understand the term -- and I think my concept is quite orthodox --nothing can be an authentic democracy that has any first principle other than The people get to choose their policies and representatives, and  majorities get to stand in for the people as a whole.

Now, I am not suggesting that the fact of political inequality, the varying amount of influence that different individuals can have on election results, is unimportant. Far from it. The fact that someone like Musk has so much more power to affect an election than any randomly chosen million other people is a colossal problem for democracy. The point is that it is something that cannot be fixed in the ways commonly suggested because not all types of political effectiveness are equivalent: equal vote weights are essential to democracies, but equal access to money or charisma are not. Thus, we cannot address political inequalities by attempts to build up or make up deficiencies of these inessential characteristics in voter cohorts without creating nonsense.🗡 The appropriate way to address these inequalities is instead via restrictions, things like campaign finance rules  that move from the top down, rather than the bottom up. Unfortunately, even if successful attempts were still being made to restrict activities like "dark money contributions," they would likely do little for poor, persistent minorities. I don't deny that this is a serious problem for democracy. I simply insist that it is no solution to claim that where political inequalities exist, we don't have (or have less) democracy. On my view, it is better to simply admit (with Churchill) that democracy is problematic: perfect democracy, in spite of its matchless intrinsic value to a citizenry, has little promise for producing a perfect (in the sense of happy or good) polity. Fortunately, that is not its role.

It would seem that Lively should have noticed the utopian aspects of his theory when he criticized Sartori in this way: "It is too easy to say that, given the absence of legal bars to political involvement, equality of opportunity has been established." Of course it hasn't — but nobody, including Sartori, ever suggested that the conditions necessary for democracy would also guarantee equality of opportunity. As Lively himself notes, political involvement is a function not just of the absence of legal obstacles but of such things as "attitudes," "resources," "sense of political efficacy," "apprehension of the extent to which [one] can alter [government decisions]," "access to information," "competence in assessing [one's access to information]," "willingness to pay [in time and money]," and "experience of social organization." How in the world could democracy be thought to require the equality of all those sorts of things? 

Lively puts conceptions of popular governance on a continuum with the highest level involving all the people doing all the deciding, legislating, enforcing, etc., down to levels six and seven. At six, rulers should not even be chosen by the people, but by those previously elected by the populace. And at the lowest level of popular governance, rulers need only "act in the interests of the ruled." Both ends of this continuum -- The Terror on one end, and complete paternalism on the other -- seem inapt to Lively (as I think they should to everyone). Even if the first level were workable in some Soviet fashion (which it isn't), the result would be largely anarchic. And, regarding level seven, if these alleged interests are not determined democratically, the people actually have no role in their governance at all, while if there is to be electoral involvement, we will need to climb back up to a higher level. 

I myself am content with level three, where rulers are accountable to the ruled and can be removed by them. For his own part, Lively is ambiguous about what level we should aim for, but one gets the sense that he could also live with level four, where the rulers need only be removable by representatives of the ruled. In my view, impeachment jurisdictions like the U.S. show how generally pointless that sort of removal "right" is.ψ 

Unsurprisingly, Lively is less interested in answering the question of the appropriate level of "people involvement" in government than in searching for ways to improve "political equality," for that, he believes, is the summum bonum of democratic theory.

Jack, with his wife, the novelist Penelope Lively

The first few pages of Justifying Democracy paint a convincing picture of Nelson carefully avoiding the same sorts of conceptual pitfalls that swallowed Lively. He assures his readers that he is well aware of a tendency of theorists to "confuse questions of definition and questions of justification or evaluation." He is focused, he says, on "finding a conception of democracy that is sufficiently close to our pretheoretical conception," so some of us may not notice (or let pass) that he adds "...and that can be justified by cogent moral argument." Nelson claims that he doesn't assume "that democracy is a good form of government." But, of course, if any decent conception of democracy must be justifiable by cogent moral argument, it's not clear how it could be anything but righteous. This makes his insistence that he does not presume that whatever is a democracy must be "a good form of government" somewhat difficult to square with his previous remarks, but perhaps he is just speculating that there may be other forms that can be justified by superior moral arguments, or that democracies, for all their moral virtues, are not workable for other, more mundane reasons. 

When Nelson asserts that he takes democracies to be systems "for making governmental decisions," and so requiring definition in terms of procedures rather than substantive policies, one gets a sense that he has regained his balance, especially after he adds that he intends to focus on "how the various institutions affecting governmental decision-making should be structured" rather than on what the decisions turn out to be. We will find, however, that our earlier wariness was justified. While his conception does distinguish processes from results, it's clear that it is only a sufficiently high probability of producing morally acceptable results that he thinks can qualify a system as democratic.* On his view, every democratic theorist has an obligation to demonstrate why the method he or she advocates -- whether it is a traditional or revisionist concept -- is morally good. And Nelson is completely comfortable in both confessing that he does not have "a complete moral theory of [his] own to offer" and nevertheless foretelling that the conclusions in his book will, because they must, consist solely of judgments in moral theory. 

Given Nelson's focus, it is unsurprising that there is considerable discussion of utilitarianism in the  book, including an interesting discussion of Sartori's version of act utilitarianism. (Partly because of the really astonishing popularity of Peter Singer's 1975 book on animal rights, utilitarianism was much more popular when Nelson was writing than it is today.) There are also valuable discussions here on Mill, Singer, Foot, Pateman, and Rawls. I will not discuss that material here because it is outside the scope of topics suitable for this blog piece, but I want to stress that some of it seems to me quite good. There is also a chapter on governmental authority, which I find generally congenial, but perhaps I would have liked even more before reading the recent Kenneth Himma book on that subject that I reviewed here. I mention these virtues because I don't want readers to infer from my criticisms above on definition or below on popular sovereignty that I think this is a worthless book. Indeed, even the material in those two sections will provide readers with useful information and  sometimes intriguing arguments. When the book originally came out, it was praised for its critiques and panned for its positive theory; I generally concur with that assessment, but would add that there is something that can be learned from every section in it...but also warn that some of the  more polemical material isn't worth the trouble of working through. The discussion of Arrow's Impossibility Theorem, for example, takes up quite a bit of space without really going anywhere. 

Nelson's first pass on attempts to justify majority rule involves a discussion of the virtues of neutrality (proposals are treated identically) and anonymity (voters are treated identically) as set forth by Arrow and Sen. He doesn't mention that majority procedures need not possess these characteristics, though it is certainly a point in their favor that they can. However, Nelson suggests that a coin-flip mechanism could share those two virtues and recognizes that this may be why a number of theorists have pointed out the importance to authentic democracy of popular sovereignty -- constituent power. But before devoting a chapter to the latter concept, he makes some of the same criticisms of majoritarianism that we have seen in Lively (and many others before and after him): giving majorities the reins may have unpleasant results for minorities. There is no doubt that those consequences should be acknowledged by any good theory of democracy.

Before turning specifically to popular sovereignty, Nelson gives us a brief, convincing chapter on whether broad participation in policymaking might alone make for an acceptable criterion for democracy. Besides a good discussion of Schumpeter's views on this subject (according to which, basically, if something can pass as democracy among the not-too-discerning, we ought to call it that), Nelson lands these haymakers: "Participatory democracy...is a system that (morally speaking) traps people. The more they participate in the political process...the more deeply they become committed to the system even if their views do not prevail." And "If it were true that participation constituted consent, all that would follow is that those who participate have an obligation to obey the laws or acquiesce in the policies of their government. A government that...achieved widespread participation would then be a legitimate government, but only in the sense that [such participants are] obligated to go along with their government." Such considerations would seem to demonstrate that it's not actually participation, but congruence with majority choice that really makes a jurisdiction democratic. This should lead us to expect that Nelson's remarks on whether democracy should be understood as popular sovereignty, a way in which people can get what they want, should be dispositive. 

Frankly, however, that chapter is a bit disappointing. After the meandering material on Arrow -- that never suggests the possibility of non-ordinal preference measures -- mentioned above, Nelson follows Benn and Peters in making the (I think correct) point that, to the extent that there is a will of the people, "it cannot be determined independently of the particular [voting] procedure employed." Of course, not every procedure chosen will be democratic. In my own view, for example, it must weigh each vote equally, and it must be majoritarian. Nelson sometimes says that he believes in majority rule, but any such preference is, for him, always outweighed by the requirement that the electoral results will benefit the people. It must be desirable for the resulting policies to reflect the will of the populace, however it is assessed. His failure to make the very fact of self-rule intrinsically valuable — or even to consider the possibility that such arrangements have fundamental and irreplaceable import — makes the section largely point-missing. There are two appendices to this chapter, but, sadly, they also provide very limited value. 

Indeed, this is the key shortcoming of both books. If one fails to realize that citizens-getting-what-they want is essential to democracy, one's book on democratic theory can only be so good. We may take the point of "people power" to be increased freedom a la Kelsen. Or we may just consider it axiomatic along with Hall (and, I think, Wall). But once one goes down the road of trying to make democracy, in its essence, a system that will make a pleasant polity or choose "correct" laws, or make a land just, righteous and kind, we are no longer engaging in democratic theorizing. Both of our authors are utopian, and, understandable as that impulse may be, I think it would have been more useful for them to turn their undeniable skills to handling the problems that authentic democracies can make for polities, rather than insisting that, where we find such problems, there can be no democracy.

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# Sortitionism is an ancient scheme for which there is substantial modern enthusiasm. I have set forth some of my concerns here. On this matter, I agree with Abizadeh. See this. 

🗡I discuss this matter at considerable length here (even including in that piece a video clip from an Amy Schumer sitcom)! Wall (2007), cited therein, is an important paper on this subject.. 

ψLevel two, because it requires that every person in the jurisdiction be "personally involved in deciding general laws and policies" without specifying which laws and policies are the general ones, seems to me quite likely to collapse into level one, which will probably limit its attractiveness to Leninists and Cordeliers.

* I actually found it quite jarring to read, shortly thereafter, that Nelson believes it is incorrect to attempt to justify democratic procedures by claims regarding such things as citizen participation or equality of influence, because, since the laws produced by these procedures may be objectively "good or bad, just or unjust....We must focus on the kind of laws or policies the procedure will yield." It is hard to imagine a remark that more clearly contradicts what he had just insisted was the plan of his book.

What are the Limits of Constituent Power?

 

In the field of study on the margins of law, politics, and philosophy there are a number of phrases that are as iconic as “Great taste! Less filling!” or “Where’s the beef!?” Consider these taglines by Carl Schmitt, Jean-Jacques Rousseau, and Emmanuel Sieyes, respectively 

• Sovereign is he who decides on the exception.

• Since the laws are nothing but authentic acts of the general will, the sovereign can act only when the people are assembled. 

• The nation is the law itself….No nation has ever been able to decree that the rights inherent in the common will, i.e. in the majority, should pass into the hands of the minority.

All three resonate with both a ring of truth and a kind of majesty that is hard to deny. It is therefore entirely unsurprising that the literature on such matters as  constituent and constituted powers, or the relationship between sovereignty and the general will is not just immense but also absolutely fascinating. 

An idea that may strike one who is musing about the force of these three proclamations is that they must be understood in a particular way to have much chance of seeming true. It’s quite obvious, e.g., that given the existing arrays of polities in the world today, some may be such that nobody will actually ever decide on what Schmitt calls an “exception”; in fact, there may be places where no exception to the legal status quo will ever even be proffered by anyone.  Furthermore, it can’t be doubted that a substantial number of (at least apparent)  sovereigns have managed to act in a large variety of ways in spite of the fact that the people there have never been assembled. And, of course, numerous nations have delivered any number of “rights” – whether or not these have been correctly deemed to be “inherent in the common will” – directly into the hands of one or another local oligarchy. 

But no such prosaic observations as those will do much in the way of diminishing the power of these canonical pronouncements. I believe that is because there are a couple of other, perhaps not quite so literal, ways of understanding them. First, rather than supposing them to be descriptive of the world of realpolitik, they may be taken as stipulative definitions – suggestions for good ways to understand the terms “sovereign” or “passage of rights.” A second possibility is that these assertions are intended as aspirational. That is, Schmitt might be suggesting that what we should want is that all and only sovereigns be the entities that decide (or have the power to decide) on crucial exceptions. Similarly, perhaps Rousseau simply hoped for commonwealths in which actions of a certain type can only be taken when the people have been assembled in a particular way.  And maybe Sieyes was just expressing his firm opposition to minority rule.

Unfortunately, the alternative readings that correspond to the stipulative or aspirational connotations may also produce a variety of interpretations -- or at least continuing arguments. So, for example, it may be doubted whether it is appropriate for “sovereign” to be understood in the proposed manner, or one may disagree about what powers really ought to be kept from majorities and reserved instead for one or another elite group.

In addition to the various ways in which many of the most important propositions involving “people power” may be taken, there are fine distinctions that political philosophers have wanted to make in this area. For example, in her contribution to the massive new OUP Handbook on Constituent Power, Simone Chambers concedes that “the concepts of constituent power and popular sovereignty are sometimes difficult to distinguish from each other.” After all, she continues, “constituent power is the authority to create or reshape a constitution,” and the latter, whether written or unwritten, provides the foundation for all lawful edicts in any democracy.  Thus, since “sovereignty implies a superlative claim to political authority,” where there is popular sovereignty it might seem that the people must occupy the place of the highest political authority, which would seem to make popular sovereignty and constituent power at least nearly synonymous. Nevertheless, Chambers insists that the concepts are clearly distinguishable, for she takes “sovereignty” to imply the power to enact specific policies and so push citizens and things around, while "constituent power” instead  implies a “generative or creative power to choose the rules” rather than the capacity to actually enforce any particular program. 

Of course, anyone may use these terms as they wish, and it is always wise to try to understand precisely how they have been used by prior well-known writers on these subjects. But perhaps I am not alone in sensing the limited value of all the logic chopping here. For we could just as easily distinguish types of constituent power/sovereignty, noting that some do and some do not involve various executive activities. Obviously, if keeping these connotations strictly separate is clarifying, it might be quite useful to do so, but I’m not sure that goal is reached when “sovereignty” (writ large) is confused with “popular sovereignty” as in this assertion by William Selinger in his contribution to a recent symposium on this subject: “Since Carl Schmitt, constituent power has been increasingly interpreted as no different from sovereignty.” I mean, even if Schmitt was guilty of muddling these matters to a fare-thee-well, I don’t believe he ever suggested that all instances of sovereignty, in the sens e of ultimate power, can reasonably be suggested to be based on the desires (or perhaps others would say interests) of the relevant constituents. That is, I don’t think even Schmitt (with all of his fondness for dictatorships) ever explicitly suggested that  sovereignty of every kind must always be a matter of constituent power. Consider Rex, who has conquered a new territory and taken control of the people and laws there. Surely, it must be correct to say that Rex is that territory’s new sovereign, but the locals – though it is odd to call a newly subjugated people a constituency – may have no power at all. In this way it seems that all the chopping will sometimes only make matters murkier. When that happens, we readers may also wonder where, exactly, to find the beef.

For my taste, one of the best places to look is Lucia Rubinelli’s Constituent Power: A History, which, to drain these advertising metaphors completely dry, manages to be both a great read and comfortably filling. I have reviewed her fine book, along with an also important new work by J.H. Snider on U.S. state constitutional referendums, here.

Oh yeah? MAKE ME!

 

OK, maybe might can't "make right" all by itself. But could power nevertheless be in the mix that has to be used to bake anything that can be correctly designated a (governmental) right? Could the ability to force compliance actually be essential to it?  Kenneth Einar Himma has pushed a coercion thesis detailing why and how power and evident detriment to those who try to ignore it is essential to any recipe for legal authority. And his little book, The Nature of Authority is a recent addition to his incisive output on this subject. I have just reviewed it here# 

Himma's approach to the various puzzles surrounding  legality through an initial focus on authority is important, and, at least to my knowledge, unique.  (Consider the now hoary question of whether angels need -- or can even have -- laws. Or the newer one of whether Satan could be a deliverer of legal edicts.) 

FWIW, I have long struggled with questions like these myself, as well as with how answers to them relate to such crucial issues as civil disobedience,$ and am finding Himma's writings extremely helpful. So, I highly recommend the study of his books and papers (in spite of their occasionally daunting complexity) to all who wonder what legitimate authority is all about.

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#with the customary batch of typos and other errors generously and jointly supplied by me and the 3:16 AM publisher. Sadly, I don't have the power to change anything at that site. Ugh.

$No doubt a bit of floundering/spluttering can be discerned from this and this as well as various other attempts of mine to suss these matters out.

Kendall III (along with Locke, Hall, and Rawls): On Social Compacts

 

In what Willmoore Kendall likely thought was his most important paper, "The Ultimate Issue Between Liberalism and Conservatism," the author's principal goal was to contrast what he took to be the correct (conservative) view of morality with a radical relativism that he attributed to liberals of every stripe.# His claim was that Locke, who Kendall came to believe merely used natural rights as a cover, while never sincerely believing in them, thought that it was not only laws and penalties for their violation that are ultimately created by contract, but the most basic ethical rights and wrongs themselves. 

On Kendall's view, all self-styled conservatives who either consider themselves contractarians or believe that the "Founding Fathers" of the U.S. (other than, perhaps, the evil Jefferson) were Lockeans are simply deluded. Real conservatism, he argues, is never based on the consent of the governed, but rather upon faith in the same eternal moral truths that were urged by Plato and Aristotle.

According to Kendall, an entire, quite popular  picture of the origin of American society is wrong.  Locke's view that "the way society and government came into existence was by man emerging from the state of nature to make a compact, which could only go into effect if all men consented to it; and that the essence of that compact was that man retained, or held back, certain natural rights which the compact accordingly set down in black and white" is not just false, but based on "whopping fibs" and "all manner of absurdities." For, on Kendall's view, most of the Founders were not Lockeans at all (opposing as they did any Bill of Rights*). Furthermore, even if those men had been Lockeans, there would have been three further problems. First, Locke was a poor guide to the ancient traditions, and true conservatives should always remember to stick exclusively to what has lasted since time immemorial. Second, Locke was not understood at the time of the creation of the U.S. Constitution to have been insincere with his talk about natural rights when, in reality, he thought there could be no rights not agreed to by compact. Finally, Kendall held that conservatives, being both wise and righteous, must understand that a pile of wildly different voters — even if by some miracle each person's vote among them happened to merit the same consideration as every other person's — a poll must never be depended on to reach any important verities. 

Kendall traces what he takes to be an all-inclusive dichotomy between those who ground morality and political obligation in eternal truths discoverable by reason — what he calls the Great Tradition, running from Plato and Aristotle through the medieval period — and those who hold that society, law, and the principles of right and wrong are entirely man-made, the products of agreements among self-interested parties. The first camp, on his telling, speaks with a single clear voice across two millennia about the merely subordinate role of consent in political life. The second camp, represented most vividly by Glaucon's speech in Plato's Republic and then again by Hobbes, Locke and Rousseau, holds that justice, as well as right and wrong, are simply what we have agreed to. Kendall's claim is that this dichotomy is exhaustive — that every serious position in the history of political philosophy falls on one side or the other — and that liberals, whether they know it or not, are always in the second camp. There is no escape via "natural rights" that, even if existent in the world, would nevertheless need to be specifically enumerated by contract.

Kendall's picture has a certain grandeur and historical sweep, but one problem with it is that it leaves out a crucial middle territory; in reality, there are not two relevant dimensions to the value landscape but three; and the conflations that follow from missing that third dimension are numerous and consequential. 

One might put Kendall's list of the relevant categories this way: (1) moral and ethical values and obligations; and (2) legal properties and obligations. Kendall took (1) to involve values that are objective, discoverable by reason, and independent of what anybody happens to want. And he claimed that honest Lockean liberals must deny the existence of any such dimension, holding instead that the elements of (2), including such characteristics as, e.g., being punishable by imprisonment, are all that can be found in the (imagined) world of values. "Imagined," because what is or is not legal is actually a matter of fact, and only derivatively suggestive of any authentic value.

It should be noted, however, that Kendall here fails to distinguish Benthamic hedonism (a consequentialist view of what constitutes good and evil) from legal positivism (the position that what laws are is solely a matter of what people have done at some particular place and time). He writes, "What is the origin of organized society? of law? of justice? of the principles of right and wrong that justice and law are said to embody?" And his answer is that, according to liberals, "Organized society came into being as a result of agreements arrived at among its members, and is, therefore, artificial, man-made. Law, justice, the principles of right and wrong, are also man-made, and are merely that which men have agreed to." On Kendall's view, then, liberals believe that any obligation one has to follow societal dictates or alleged principles of right and wrong, simply follows from some original consent, though he recognizes the view of those involved was that consent was "most likely to conduce to their well-being." And perhaps he is also suggesting here that liberals, whether or not they agree with the argument famously made by philosopher John Searle that uttering a promise or signing a contract generates a moral "ought" and so creates real a obligation in the universe, will surely always deny that there are any other kinds of "oughts" that can be found in the world. For liberals, obligations are constructs.

In addition, it should be recognized that, in spite of the alleged all-inclusiveness of the two above-mentioned categories, Kendall also suggests that such legal "principles" as liberals do admit are likely a function of beliefs regarding well-being —what (whether actually morally appropriate or in anybody's interest) is believed to be good for some person or group at a relevant time. What is crucially missing from Kendall's bipartite picture, then, are prudential values and obligations — what a  person or group should do if it wants to produce as much well-being as possible. Therefore, we must add to Kendall's two value types prudential values and the obligations they create.$ I say that, like moral values and positive law, prudential values also produce obligations, because there, too, we will find "oughts"--what a people should do if they want to make as many folks as possible as happy as possible. I therefore claim that prudential values should be seen as a distinguishable third dimension, rather than just factors in the historical choices leading to the production of legal properties in the manner Kendall suggests, because it is possible for the obligations emanating from prudential values to reflect neither what is truly right nor any actual laws of the land. Consider that a canny, prudent person may have settled on taking action X, while her crafty lawyer instead urges action Y on her (since X is illegal), and her saintly aunt Eleanor argues for Z, simply because the other two activities wouldn't be very nice. 

Now, it is hard to disagree with the claim that legal positivism, which makes laws no more than a function of procedures that can be said to have been originally initiated by some sort of popular consent, has, at least since the days of Bentham and Austin, been espoused by numerous individuals we would now characterize as liberals. But it is important to note, too, that legal positivists have not generally conflated legal with moral claims. In fact, for Bentham and Austin, the two above-mentioned godfathers of positivism, laws (positive or no) should be considered excellent or poor based on the overall utility they have produced — or can be expected to produce — on societies in which they have been or will be enacted. In other words, being prohibited by law should not be taken to be another way of saying some particular actions are bad or wrong. In the views of those early consequentialists, goodness and rightness are matters of what produces the most happiness, and cannot be deduced from the fact of any historical legal procedure.

Now, if one is both a legal positivist and a Searlean, one may assent to the claim that citizens have not only legal, but also moral obligations to obey properly generated laws. And it may also be true that such a contractarian could hold that the signing of some "original compact" resulted from the estimates made by the populace regarding the future utility of agreeing rather than holding out and so being stuck forever in an awful, Hobbesian "state of nature." I don't know of any such Searlean positivist myself, but it is surely possible that some have existed. But even if they have, the problem would remain that Kendall's summary of the liberal position, by conflating both moral and prudential values with legal outcomes, runs together several theses that are importantly distinct and additionally accuses liberals of mistakes they have been exceedingly unlikely to make.

In sum, Kendall's dichotomy leaves no room for a position that takes neither the Great Tradition's eternal moral truths nor Lockean contractarianism as its foundation, but, e.g., rather treats democratic equality as an axiomatic commitment — chosen rather than discovered, and not derived from any calculation of future utilities. Yet that, and other "middle" positions have not been terribly rare. My own work on democratic theory provides one example, though I make no claim that it is the only or even the best one. Readers familiar with that work will know that I support a position I originally found in the work of Everett W. Hall and subsequently tweaked into something I have called "CHOICE voluntarism."🗡 On that view, a public policy is appropriate in some jurisdiction if and only if it is supported by a majority of the people there, as indicated by a fair election. 

But wait a moment. This "appropriateness" I speak of -- what is its nature? Presumably, I am not suggesting that the particular manner of making policy I advocate is the lawful one, since it may very well not be in accordance with any law. Is my claim, then, that only the mechanism I endorse can be prudentially good? Absolutely not! It would take a large quotient of omniscience to confidently make any claim of that type. While I  certainly do believe that giving people what they ask for is probably the safest way to maximize their well-being, I quite understand that people are often wrong about what is in their best interest.

So, surprising as it may seem for one who Kendall would surely declare to be a dastardly liberal, I take acceptance of my sort of majoritarianism to be a moral requirement. But I hasten to note that this is the case even though it is my view that every moral commitment that I (or anybody else) makes is very likely to be mistaken. For I take it that none of us can really know that such commitments are the correct ones. In a word, I am a skeptic with respect to moral claims who nevertheless rests my political theory on an ethical postulate. 

Another way of putting this is to concede that for my sort of "distilled populism" to be the way to go, democratic principles must be taken to be intrinsically good. My claim for the intrinsic goodness of democracy involves stoutly defying Kendall's deprecation of egalitarianism and insisting instead that every person and every vote must be given exactly equal weight. And I would add that we do this not because we feel we can be sure that no possible arrangement can ever provide as happy a populace as self-government (as Huxley illustrated, even distribution of "soma" might do better), but because the correct view involves taking self-government to be of unparalleled value. As Kelsen joined Locke in saying, without real democracy, nobody can be said to be free.%

As mentioned, distilled populism isn't the only way to avoid Kendall's dichotomy. The most sophisticated contemporary attempts to escape Kendall's dichotomy may be those made by a variety of Rawlsians, a group that is still numerous enough to constitute something like a dominant school in Anglophone political philosophy. The early Rawls, whose 1957 paper on justice as fairness was already fully formed enough to draw a characteristically sharp response from Everett Hall, might seem to fall squarely into Kendall's contractarian camp — grounding principles of justice in what self-interested but rational parties would agree to under idealized conditions. But the later Rawls explicitly distanced himself from any such metaphysical foundation. His mature position, developed through the 1980s and culminating in his book Political Liberalism, was that justice as fairness should be understood as 'political not metaphysical' — that is, as freestanding with respect to any controversial moral or religious doctrine, including natural law. On this reading, Rawlsians would claim to occupy precisely the middle territory that Kendall's dichotomy excludes: neither committed to the Great Tradition's eternal moral truths nor to a crude  derivation of right and wrong from self-interested agreement.

Whether this escape actually succeeds is another matter. Hall already noticed in 1957ω that the normative force of Rawls's fairness principles seemed to depend on commitments that the procedure itself could not generate — that there was, as Hall put it, a hidden intuitionism at work beneath the contractarian machinery. The later, political Rawls might seem to have sidestepped this objection by grounding his principles in an 'overlapping consensus' among citizens who hold diverse comprehensive doctrines. In this way, the later, more 'political' Rawls might be seen as attempting to construct a procedural version of exactly what Kendall demanded: a 'Public Orthodoxy' that defines the boundaries of the community, albeit one grounded in shared democratic reasonableness rather than 17th-century covenantal truths. 

But the question remains whether such a consensus, even if achievable, can do the normative work required of it without smuggling in substantive moral commitments of exactly the kind Rawls wanted to avoid presupposing. I'll leave it to Rawlsians to say whether that objection can be answered. The point for present purposes is simply that even the most sophisticated contractarian tradition finds itself navigating the same terrain that Kendall's dichotomy pretends to exhaust — and that the axiomatic voluntarist position staked out by Hall and developed in my own work represents a genuinely different approach to that terrain, one that Kendall's picture has no room for.

Like other moral realists, Kendall seems to have taken the position that moral truths can somehow be "intuited." He doesn't go into much detail regarding such intuitions in this paper, but he does refer to "a higher law" (one that liberals naturally fail to recognize), and he suggests that reasonable conservatives should be focused on "the perfection of man's nature" and "the attunement of human affairs to the will of God." 

Now, it may seem churlish to many of my readers to deny that "we can just tell" that it is wrong for a grown person to intentionally kick a defenseless baby, or that it is a good thing to help someone continue to live who is struggling to keep her head above water. After all, some actions seem naturally to produce emotions of empathy or revulsion. If those aren't evidence of good and bad, right and wrong, what in the world could be? 

For what it's worth, I actually agree with that questioner. Contrary to Kendall's unsupported accusations regarding all who disagree with him about The Great Tradition, I agree with moral objectivists in believing that moral statements are either true or false, and in denying that they are "made true" (as relativists hold) by human actions or beliefs. Furthermore, I would not try to reduce any moral statement to propositions about utility in the manner proposed by Bentham, Austin, or Mill. 

Where I differ from most moral realists is that I deny that we can actually know whether any moral claim is true or false--even when we do have evidence for or against some of them. (For again following Hall, I believe that our emotional responses do provide evidence with respect to moral claims.)

How can that be? Is my understanding of "knowledge" so restrictive that I would also deny that I can ever know that it is raining outside? or that my desk is brown? I don't think so. I think the factual and ethical claims can, and should be, distinguished with respect to their epistemological promise. The difference is that in the case of empirical propositions like "This desk is brown" we have a well-confirmed scientific theory of what is happening when something appears brown. We have physics, chemistry, and biology in addition to what seems to us to be the case. Even long ago, before there was much in the way of physics or chemistry to depend on, there was at least "folk science": when certain things in the world are arranged in certain ways, light strikes our eyeballs making things in front of them take on certain sorts of appearances. There's no magic required.

To use Susan Haack's brilliant crossword analogy, in the case of empirical statements we have not only "across clues," the phenomenological evidence provided by what appears to us, but "down clues" as well, that follow from a scientific theory that explains why things look (or sound or smell) as they do. But in the case of moral claims, all we have are the across clues, the emotional responses to various entities or activities we confront. There is no "general theory" that explains what is going on when some action seems to us particularly nice or terribly evil.Σ 

It's true that hedonists like Bentham have proffered general theories intended to do the trick: they have defined morality in terms of pleasure and pain. For them, our emotional responses are  dependable only to the extent that they reflect accurate estimates of associated utiles. Others have suggested that what makes something good or bad is a matter of whether God likes them. Unfortunately, none of these explanatory theories have stood up to criticism. To take a well-known example, there seems certainly to be a moral problem with stealing a healthy person's liver, kidneys and heart even when those organs will be used to keep a half dozen other people alive instead of performing their current functions. So our attitude of revulsion seems to be providing some information that tends to disconfirm the hedonic theory. As for theistic voluntarism, the idea that the goodness of some thing or activity is a function of God's happening to endorse it was soundly trounced by Plato, one of Kendall's great heroes. And it might be noted that even when considering the apparently egregious activities of an allegedly omniscient and omnibenevolent deity, we seem unable to ignore what Adam Smith called our "moral sense." We may understand that we might always be wrong, but....there are limits to what we can completely disregard without changing the meanings of words like "righteous" and "atrocious."

So I remain comfortable denying that we can claim to know that this or that action is ethically good or bad, right or wrong even though I also think we can do pretty well with what we have: beliefs and limited, one-direction-only evidence. We can be moral skeptics, I think, without falling into any sort of abyss of moral solipsism. 

And that, finally, is what is most troubling about Kendall's dichotomy. It is not merely that it leaves out positions like my own, or like the many versions put forth by Rawlsians, or like those of any number of other theorists who also find themselves in Kendall's excluded middle. It is that the dichotomy does political work — and ugly political work at that. Work that certainly triggers emotions of repugnance. By presenting the Great Tradition's eternal moral truths as the only alternative to a liberal relativism he has discredited, Kendall licenses the confident exclusion from democratic life of anyone who fails to share his community's 'basic beliefs.' But if my skeptical argument is even roughly correct, not only can those exclusions not be grounded in anything we actually know, they would have to overcome what (admittedly corrigible) evidence we have for our antipathy to them. What warrant we have is limited, but it is something — and it is clearly inconsistent with the kind of moral certainty that ought to be required to declare one's neighbors enemies of the people and show them the door. 

Kendall's Great Tradition, for all its grandeur, turns out to rest on a confidence in moral knowledge that none of us — conservative, liberal, or otherwise — is actually in a position to claim. And to presume to act as Kendall thinks we should, this Tradition must deliver at least what is sufficient to override intimations that the conservative philosophy being pushed rests predominantly on desires for supremacy.

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# In his biography of Kendall, Christopher Owen calls "The Ultimate Issue" the keystone paper in the collection of Kendall's work entitled The Conservative Affirmation. Owen notes that Leo Strauss said of that paper that it is "the center of the book, where the reader is led to the deepest philosophical level attempted in the book, and where at last the purpose is to instruct him philosophically, not to propagandize him.” According to Strauss, Kendall wanted that piece “to stand out like a sore thumb, i.e., as quite different in character from the rest of the book.”  

*It should be recalled that many of the participants in the Constitutional Convention opposed a Bill of Rights as posing too great a restriction on legislative powers. 

$I have discussed the concept of prudential values and their contrast with explicitly moral concerns as that distinction was carefully analyzed by an author homophonically related to John Austin here. I find it interesting to consider that Everett Hall arrived at his axiomatic egalitarianism — the claim that anything freely chosen is by that fact good and equal to any other freely chosen thing — without clearly indicating whether he was making a prudential or a moral claim; in fact, he likely simply thought of both types as being of the form It were well that X occur. But it is my sense that at the level at which one attempts to ground axiomatic voluntarism the distinction between moral and prudential values doesn't matter much. What does matter is that equality be treated as a foundational value rather than derived from either positive law or probability estimates. One may even, if one likes, call it a matter of natural law, but, as I shall argue below, that is something we can't really know, and should not be thought to matter. 

🗡There are detailed discussions of this idea both in my book and in this paper.

%For Kelsen, see his General Theory of Law and the State (1949), pp. 286-287. With respect to Locke, I am thinking of his "corporeality" defense of majority rule in his Second Treatise. If, as Locke claimed, majorities always carry more "weight" or force than any minority, it seems fair to take minority rule as necessarily freedom-depleting--like the yoking of several giant oxen to a plow manned by a single person...or a bunny.

ωSee his review of Rawls "Justice as Fairness" paper in Journal of Philosophy. Unfortunately, Rawls never saw fit to respond to Hall, who died at the age of 60 in 1960.

ΣShelly Kagan makes a similar argument regarding the need for a general theory in his wonderful paper, "Thinking About Cases" (2001). The Haack crossword picture is drawn in her seminal 1993 epistemology book, Evidence and Inquiry. Hall makes the case for emotions providing evidence for moral judgments in his Our Knowledge of Fact and Value (1961). It seems to me worth considering whether, in the absence of real knowledge of what is "right" and "wrong," we should be even more comfortable with democratic determinations of public policy -- especially given the fact that the point of democracy isn't a search for truth in the first place. See this. And maybe this.

A Little Note on the New Voting Rights Act Decision

Naturally, there is a ton of interest in both the majority opinion and the dissent in Louisiana v. Callais. (Probably the paper I have seen that I like most has been by Nicholas Stephanopoulos, since it doesn't seem quite as hopeless as most of the others.)

 
But in my own view, there there is a quite realistic sense in which voting rights really are hopeless given our current Constitution. What I mean is that there actually can't be a good decision regarding Sec. 2 of the Voting Rights Act. That's because the very point and idea of gerrymandering is to ensure more winners for a particular faction, and no SCOTUS decision can be devised that won't allow such practices given the Constitution as it now stands. In other words, any judicial opinion on the matter will have to be bad in principle, whether it helps or hurts this or that minority.

Republicans have long been quite fond of claiming color-blindness, and, although such claims are in laughably bad faith, who can blame them for wanting to seem like the good guys here? The notion of Black districts is distasteful on its face, even if it seems necessary given the vast amount racism in this country, particularly in the South. My own view is that given these difficulties, there are unbridgeable chasms to what can be done by the courts. No doubt, if Justice Kagan were writing for the majority, the immediate result would be more equitable for Black voters—correcting for the deep-seated reality of Southern racism and producing a result that feels "fairer" in the moment. However, we must recognize that even this "better" judicial outcome leaves democracy itself in a precarious state. By upholding Section 2 in its current single-member framework, the Court would have essentially conceded that democratic health must depend on race remaining a reliable proxy for partisan preference. An authentic democracy should not rely on any such allegedly essential connection to function. When we celebrate a "good" decision, we are merely cheering for a more sophisticated way of managing a system that is fundamentally rigged by the very existence of district lines.

There is no judicial exit from this trap. That means that Drutman et al. are generally right about the need for multi-member districts (and Pildes and other nay-sayers are wrong). We simply have to get rid of all district lines affecting state or federal elections except state boundaries, which can't be altered at legislative whim. (Their fixed nature is why we need not be as drastic as Stephen Legomsky, who recommends eliminating states completely). The moral is that citizens should be allowed to vote on pretty much everything except electoral mechanics--and those include district lines. If states can do whatever they want to ensure that some party gets as many winners as possible, they can simply vote away democracy altogether.

So I think it's important to remember that the quite serious problems with democracy in the U.S. can't be fixed by having better Justices who will write better decisions. Furthermore, while particularly awful things can be delayed by Congress writing better laws, that isn't really the answer either. We need to get rid of single member districts altogether, and that would likely take a Constitutional change.#

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#While the 1967 law requiring single-member districts makes it conceivable that a similar federal statute requiring that all Congressional  members from each state be fairly elected from a single statewide district (i.e., not via anything like at-large voting), not only is it hard to imagine anything like that ever passing, but it would leave state legislative districts to be crazily gerrymandered.