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

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

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

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

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

A Distressing Realization for a Democratic Theorist

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

But, but, but...

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

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

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

Here's why.

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

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

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

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

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

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

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

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

Ah well.

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

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

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

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

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

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

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

Live and learn.

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

 

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

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

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

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

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

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

 

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

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

I think we can put the analogy this way: 

• Rejection of Normative Primacy

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

• The "What" Precedes the "How"

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

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

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

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

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

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

********

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

           

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

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

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

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

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

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

My (perhaps overly strident) review of Michael Lynch's "On Truth in Politics"

 

Michael Patrick Lynch, a thoughtful scholar with an intense devotion to democracy and a clear desire to do all he can for both its preservation and enlargement, has recently written a wide-ranging book on the nature and relationships of truth (along with the desire to find it) and deliberative democracy. My new review of his book, however, focuses mostly on how his understandings of both truth and democracy differ from my own. While I stand by my criticisms, I admit that my piece now seems to me come off as a bit harsh and know-it-ally.

FWIW, I attribute my emphasis on disagreements  of this type with my being something of a "hollaback girl" at heart#--(though I suppose I may credit myself for not being what Lynch calls a "Twitbookian"). I want to stress the fact, however, that no one should think I am hollaingback specifically at Lynch! Maybe it's just at the philosophical world at large? Though if it is, it's definitely not because one of my besties told me that it was talking about me. This, I think, is an unattractive characteristic I share with Samuel Butler, the thinker from whom I stole the name of this blog. 

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

#As we know from her song, Gwen Stefani ain't no hollaback girl herself.

"Hey, if I found out somebody had been sneaking into my fitness club for years without paying, I'd want him arrested!"

 

The complaint encapsulated by the above title corresponds to the Republican Party's attitude toward "illegals" at present, and is now being tied to the current dispute over whether the U.S. Census should include the counting of non-citizens. Even if the critic of the current process concedes that "illegals" won't be allowed to vote--a concession which, of course, is quite unlikely given who these particular critics are--based on the (unassailable) point that counting such individuals in the Census has effects on the distribution of Congressional and Electoral College seats, they would be likely to continue to maintain their objection to counting "illegals" in the Census.

Are such effects inappropriate, akin to letting a poacher dominate use of the gym eliptical (every freaking day!?) The short response is that countries are not clubs.  If a fitness establishment has rules requiring the payment of fees, then it is quite reasonable to insist that nobody should be getting club benefits without paying up. But territories are importantly different: if they are to be considered authentically democratic, they must have authentically democratic rules and rule-making in place. Voting rights should not be thought to be among the "benefits of citizenship" in any real democracy, because the former should be understood to be part of the grounding of the latter. What one gets for being a citizen is up to the voters!  That means thar, while votes should be taken to be the appropriate way to make almost every public policy, those that constitute and constrain democracy itself are exceptions to that rule. 

Without that crucial deviation, there could be no good objection to calling what Putin is attempting in Ukraine or Netanyahu would like to achieve in Gaza examples of forceful democritization of deviant territories. In other words, when a sufficiently powerful alien country takes over a territory, they may set forth a list of whose preferences are to be counted there, and so long as they hold events that look something like elections occasionally, they can describe what they have done as being consistent with "democratic nation building." 

And, of course, some individual or country might have the power to take this or that land (even planet!) by force; the point is that the immediate result of such conquest can never be correctly called the creation of a democratic polity unless every competent inhabitant there gets to vote on  all matters of national policy (again excluding axiomatic democratic principles).

The appropriate way to prevent an entire world of might makes right among those nations calling themselves "democracies" is to insist that once people have been living in a territory for a reasonable period of time--say a year--they must have an absolutely inviolable right to equal involvement in the determination of (nearly all) nearly all the public rules there. 

The equal effective electoral power of all competent residents# should extend even to policies involving immigration, emigration, and citizenship. The crucial exception, however, is that such policies (even those regarding citizenship or "wall-building") cannot extend to voting rights.

In other words, a group of people can make a club and put whatever rules in place for it that they want. But a group of conquerors can't just declare ownership of a populated area and imagine that it will be a democracy regardless of whoe they announce has the right to vote there. 

Getting back to our original question, this means that the fight regarding which individuals should be included in U.S. Census tallies must be determined in accordance with at least something like the Democratic Party's preferences, because if all competent residents--regardless of their "legal status"--aren't counted for the purpose of determining, e.g., the appropriate number of Congresspersons for each state, the U.S. cannot reasonably assert the right to be included among the democratic republics of the world.##

Other purposes of the Census, like those involving the distribution of Federal funds, aren't in the same category. The question of whether only citizens should be counted for the purpose of welfare determinations is something that, arguably SHOULD be subject to majority vote. The point is that all the non-temporary residents must be allowed to vote on them if any question of that sort is put to "the people." 

Authentic democracy absolutely requires that every long-term resident (even incarcerated felons) be treated equally with respect to the weights given their preferences, and it doesn't matter in the slightest how the majority of those who are currently eligible to vote in America would prefer this dispute to be resolved. No territory can remain a democratic polity if it allows for the undermining of basic democratic principles--even by its voters. Not only would a majority be insufficient to legitimately exclude non-citizens from being counted in any Census used to determine numbers of representatives, unanimous consent wouldn't do the trick either. 

This isn't actually that complicated if one thinks about what is necessary to make something a democracy and remembers that the democratic axioms landed upon cannot be abandoned (even by the voters!) without forsaking democracy itself.

----------

#For a brief discussion of "competence," see my blog entry for 9/14/23 and the one for 7/18/25. For discussions of "residence" and "inhabitancy, see my book, especially Chapters 5 and 6.

##Admittedly, whether the US should now be (or should have ever been) included either way is a good question...but never mind that vexing matter for the present.

Arendt's Strange Take on Truths, Opinions and Facts

 

Hannah Arendt has certainly been having her day. That she led a fascinating--even romantic--life, is clear from several recent movies and documentaries about her. She wrote both knowedgeably and passionately on subjects that are of the utmost importance in the world today: totalitarianism, refugee problems, political reform movements, racism. She was both prolific and deep. Some of her work, particularly that which focused on what she called "the banality of evil"  touched a nerve and was extremely controversial. It is unsurprising, in view of the clearly authoritarian turn in U.S. governance these days that Arendt, who was something of an expert on both Nazism and Stalinism, has gotten extremely popular of late. (But maybe it's a little unexpected to find something he calls "Arendt's Law" in Paul Krugman's most recent Substack essay.#)

I am not an Arendt scholar myself. But, as I have been reading some of her work lately, partly as the result of a recent review of a book by Margaret Canovan (who was an Arendt scholar) and partly in anticipation of writing something on a new book on truth and politics by Michael Patrick Lynch, I thought I would try to give those unfamiliar with Arendt's work a sense of just how exotic her views on truth and opinion are. 

As far as I can tell, Arendt first discussed this matter publicly in a lecture on Truth and Politics that she delivered at Notre Dame University in 1954. Rather than take complete credit for her unconventional theory, she attributes its main outlines to an anti-Socratic strain in Plato's thought.## The idea is that Plato was as disgusted by the treatment of Socrates by city folk as a liberal reader of the New York Post or X today might be at MAGA-oriented comments found there. On Arendt's view, Plato felt that Socrates should have been understood to be above the common fray, to be engaged in the hunt for eternal truths, in spite of the polis attitude that, "If he's so much smarter than we are and has nothing to offer about how to make our lives better, why doesn't he at least write brilliant plays or poetry or make beautiful statues? In reality, the guy is good for nothing at all!"  

Now, according to Arendt, Socrates didn't agree with Plato that philosophy could not provide better lives for the people. For Plato took TRUTHs to be absolutely separate from the sort of facts that would ever be of interest to the people, while Socrates thought he could help make things better for the polis. According to Arendt's Plato, all the common folk can have are OPINIONs: they are as far from TRUTHs as cave dwellers are from the sun. Keep in mind that this failing isn't just a matter of how much evidence has been complied on behalf of some proposition or other, as if something could cease to be a mere opinion when justification for it reaches some level of sufficiency. Rather, an ontological separation is being made here between propositions of essentially different types. 

The idea here is that what is a mere OPINION can never reach the level of a TRUTH, no matter how much evidence for it is amassed. That's because, on this view, TRUTHs all resemble "2 +2 = 4" while OPINIONS are more along the lines of "Aristophanes tells a better story than Sophocles." So, it's claimed that there is a sort of objectivity to propositions of one group that can never be exemplified by propositions in the other category. And persuasion, while relevant to the world of OPINION, is simply out of place when we are talking about TRUTHs. So, on Plato's view (according to Arendt), Socrates was mostly wasting his time chatting up the people of Athens.

The oddness of this way of sorting propositions is that it is customary to attribute the property of being true or being false to beliefs, statements, propositions, etc., whatever the nature of their content. In ordinary language, we take the predicate "true" to mean exactly the same thing, whatever the content of the proposition to which it is being ascribed. It doesn't matter whether we are talking about an axiom of geometry or a description of a meal: we either get things right or we don't. What we say, write, or believe is either true or it isn't. (Though maybe, in the case of value judgments, like how good the meal tasted or how funny the comedian was, it might be neither, or at least the proposition might be said to be insufficiently specified.) 

But Arendt understood this matter quite differently. For her, OPINIONs can never be TRUE. On the other hand, she claims that one's OPINIONs are not exactly "subjective." They "comprehend the world as it opens itself" to one. Thus, although they don't reflect "subjective fantasy and arbitrariness," neither can they ever be understood as "something absolute and valid for all," and on this view, it is only that sort of universality which can make something TRUE. This is because, although "the world upens up differently to every man according to his position in it...the sameness of the world, its commonness or objectivity resides in the fact that the same world opens up to everyone and that despite all differences between men and their positions in the world...both you and I are human."

This appeal to intersubjectivity is a bit confusing (perhaps especially so to those like me who are not steeped in the "continental" side of modern philosophy). But, leaving complicated niceties aside, it is fairly easy to see a problem. Like many of us in today's AI-infested world, Arendt was  extremely concerned in her own time about the near omnipresence of lying. (She was particularly exercised by the Pentagon Papers.) She recognized that both those in power and those in search of it have, since the birth of politics, used untruths almost any time it was believed that deceptions would increase the liar's power or popularity. 

Now, there is no obvious tension between Arendt's conception of OPINION and the possibility of lying: one simply expresses something that does not jibe with how the "world has opened up." The problem emerges when one considers that (i) the things politicians lie about are usually neither "rational" TRUTHs nor doxa (OPINIONs), but contingent, often verifiable facts; and (ii) Arendt has no doubt whatever about the truth of a vast number of such propositions. In her 1967 New Yorker article "Truth and Politics," Arendt writes that "considerably more than the whims of historians would be needed to eliminate from the record the fact that on the night of August 4, 1914, German troops crossed the frontier of Belgium." And she adds that "Once perceived as true," statements like 'In August 1914 Germany invaded Belgium' "are beyond agreement, dispute, opinion, or consent." This is so, she says, because "for those who accept them, they are not changed by the numbers or lack of numbers who entertain the same proposition; persuasion or dissuasion is useless, for the content of the statement is not of a persuasive nature but of a coercive one....Facts are beyond agreement and consent, and all talk about them – all exchanges of opinion based on correct information – will contribute nothing to their establishment. Unwelcome opinion can be argued with, rejected, or compromised upon, but unwelcome facts possess an infuriating stubbornness that nothing can move except plain lies." When it comes to "brutally elementary data of this kind," Arendt tells us, "their indestructibility has been taken for granted even by the most extreme and most sophisticated believers in historicism."

Arendt's astonishment at the audacity of some liars brings her to absolute outrage: "Even if we admit that every generation has the right to write its own history, we admit no more than that it has the right to rearrange the facts in accordance with its own perspective; we don’t admit the right to touch the factual matter itself."

That may all be eminentally reasonable, but, unfortunately, it is inconsistent with Arendt's ontological categorization of TRUTHs vs. OPINIONs. The claim that Germany invaded Belgium in August 1914 is a simple contingent fact on her view: i.e., neither a (rational/philosophical) TRUTH nor an OPINION (i.e., an example of doxa).### 

The moral here, I think, is that the concept of truth is, as thinkers as diverse as Aristotle and Tarski have pointed out, singular and absolutely fundamental. There isn't one kind for philosophers and another kind for Fox News viewers...or one kind for algebra and another for The New Yorker. But it confuses things to suggest that contingent matters of fact are "beyond agreement, dispute, opinion or consent." It actually makes no difference whether something is completely obvious, highly controversial, or completely unknown, and it is contrary to coherence to bring in epistemological matters here: propositions are either true or they aren't--whatever our relation to them may happen to be.

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#His piece. In case you're wondering, Krugman defines "Arendt's Law" as Totalitarian and wannabe totalitarian regimes only hire incompetent hacks.

##I want to stress the fact that in addition to not being an expert on Arendt, I am also very far from being a Plato scholar. In fact, IIRC, I did not take a single course in Ancient Greek Philosophy either as an undergraduate or while in grad school. And I've never taught anything related to Platonic thought except a couple of well-known Dialogues in a class on Introduction to Ethics. I hope this will excuse my unwillingness to comment on the accuracy of Arendt's interpretations of Socrates, Plato, or Aristotle.

###For a more detailed discussion of this aspect of Arendt's work, I recommend John Nelson's "Politics and Truth," published in American Journal of Political Science (1978).