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 at 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 ignoring close study in favor of using the tragedy of Socrates' sentence as a propaganda device. These faux scholars were 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 [and, maybe try to give the impression that we can also conclude that there should be none anywhere]. 

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, of course, 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 indicated that whatever the jurors conclude should done to  the accused is acceptable, 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, from either 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 much more to be successful. Kendall is very unclear about this, but this 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 was confused in this way.

Again, as Mill understood this morality, there was  simply no ethics apart from utility. We have seen that Kendall distinguishes morality from legality, and in various parts of this paper he also at least seems to distinguish prudential from moral reasons. However, no reason he adduces for allowing societies to be impermissive is free of the utility claims. Indeed, he simply seems to agree with Mill that an absolutists 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 Karl Popper. 

But Popper also didn't believe 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 matter 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 a limitation. 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 the fallacy of equivocation even more likely. And it might be argued that Socrates' activities should have been protected by those limiting factors, though that argument would not be a simple one. Again, I won't be making any such claim here. I would simply present my democratic principles and, given their acceptance, leave the matter of Socrates' execution to Plato scholars. For two things I am not are historian and Plato scholar. 

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

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# It's worth mentioning that Kendall says much the same thing in his dissertation about prior Locke scholarship--that not only has nobody ever fully come to grips with Locke until Kendall, but 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 on this blog.

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Elections cost money. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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