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.

It should be noted 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 understood as 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, 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 rather than performing their current functions. So our attitude of revulsion seems to be providing some information that actually disconfirms 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 diety, 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. But I 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.

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, to continue the enslavement of Blacks, or  to provide 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, indicates 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 democratic theorists 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 errs in joining Kendall in his attempt 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 more poorly 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, it is easy to see their presence in nearly everything he wrote after 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 always 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" and other forms of commonality. It follows from any claim of that type, however, that actual voting is entirely hollow, nothing but a show. 

It is important to recognize that this communitarian view was not entirely original to 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 (i.e., those supported by a national majority). 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, his view became that there could be no possible resolution of the tension he had earlier seen between the two  Lockean positions. 

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 takes 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 that there is an unresolved tension between natural rights and democratic authority that requires 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. Even his formerly beloved Rousseau is now seen as being part of an evil triumvirate along with Hobbes and Locke -- a trio that insisted there could be no good in the world but what random groups of people happen to agree to. 

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 usage. 

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 a 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, McCarthyite 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, everyone of that ilk 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 care to look a bit more closely, it would be 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,  Kendall's disciples can be found everywhere these days.

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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 good 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.

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

# 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 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.