Paine and Bentham on Democracy and "Natural Rights"

 

Not long ago, at a social media site I frequent, I was discussing (OK, pontificating on) the nature of “natural rights” and pondering whether, if all one has available is some sort of consequentialism, it’s possible to fend off things like involuntary organ donation or murders on trolley tracks. An interested participant contributed this comment:

It's interesting that you had a difficult time with the idea of mandatory organ donation. I thought about it very little but the answer seemed quickly obvious. If you will indulge me: Natural rights exist or they don't. If natural rights of the individual don't exist then no one is wrong if he violates the claimed rights of another….The problem is: If natural rights of the individual don't exist then neither do natural rights of the society. Society doesn't have the right to take my kidneys. It only has the power.

I will not give my loyalty to a party that sees me only as a resource from which to harvest my labor and my parts. I will immolate myself before I surrender my organs.

 Now, I agree with a couple of assertions there. I think it’s true that either natural rights exist or they don’t; also that if individuals don’t have natural rights then societies don’t either. I also admire the defiant, lionhearted attitude found here, as well as the ease and certainty with which this discussant believes he can untie philosophical knots that have stymied brilliant knottologists for centuries. But there are also a few things in that comment that seem wrong to me.  For example, it doesn’t seem to me to follow from the assumption that there are no natural rights, that no one is in the wrong if she violates something that is claimed to be a natural right of somebody else. And for related reasons, I also don’t find it obvious that if there are no natural rights, societies no one can object if a society runs off with one or more of my kidneys when I’m not looking.

Is my position internally coherent? Well, it’s intriguing that two first rate political theorists who had wildly contrasting views regarding the existence of natural rights, Thomas Paine and Jeremy Bentham, had numerous nearly identical views, not only about the importance of democracy, but about why and how various government structures are likely to produce a happy citizenry. In addition, looking their work indicates that while Paine (a staunch natural rights defender), might agree with my FB interlocutor that without an assumption of natural rights it might be difficult in certain circumstances to demonstrate the evil of a country making off with a citizen’s kidneys, it is easy to see how both Paine and Bentham (an acerbic natural rights disparager) might agree that kidney theft, even by one’s own country, is simply not OK. 

This being a very interesting subject, I thought I would consider the convergent/diverrgent views of these two thoughtful observers of the French and American Revolutions. I will also shove a few relevant quotes from the blokes into an endnote area. 

Let me begin by listing some of the many points of agreement between the two firebrands.  

Unicamerality

Both advocated for a single legislative body. For Paine this was in the context of the Pennsylvania Constitution, which actually prescribed one of the very few unicameral legislatures ever seen in the U.S. for about a decade. Both philosophers believed that a unicameral system would be more democratic and less prone to corruption and aristocratic influences.  In Bentham’s "Plan of Parliamentary Reform," he criticized the complexity and inefficiency of bicameral systems, advocating for a simpler and more direct form of representation.

Recall of Officials

Both supported mechanisms for holding public officials accountable, including the recall of officials. 

Disdain for Monarchs

Both were staunch critics of monarchy and hereditary power generally, believing that such ideas were outdated and unjust  and made for governments that perpetuate inequality and oppression. 

Inappropriateness of Binding Future Generations

Both complained bitterly about the idea that some constitution-writing generation has the right to bind future generations with its laws. Each believed that each generation should be able to decide what it wants–including what laws it wants, for itself. Society’s needs and knowledge evolve, and both men believed that laws should be able to as well. In his “Plan of Parliamentary Reform,” Bentham wrote that “The Constitution…shall never impede the amendment of its own errors.” And Paine wrote in “Rights of Man” that “Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it.”

French Revolution

Both (in the case of Bentham, eventually) came to support the cause of the French Revolution. For Paine, it was a fight against tyranny and a movement towards establishing a government based on natural rights and democratic principles. Bentham, who was extremely partial to the writing of detailed and explicit legal codes, saw it as creating a wonderful opportunity to implement rational and utilitarian principles in governance.

Constitution Writing and Democracy

Paine supported the idea of written constitutions as a means to safeguard natural rights and ensure a just government. He believed constitutions should reflect the will of the people and be subject to amendment as society evolves, advocating for the sovereignty of the people and the importance of representation. Bentham believed that democratic systems, where officials are elected by the people, ensure greater accountability. Elected representatives are more likely to act in the interests of their constituents to secure re-election. He argued in his "Plan of Parliamentary Reform," Bentham that representatives in a democracy would be more attuned to the needs and desires of the majority, as their political survival depends on popular support.

******************************

But, as said above, Paine was a strong advocate for natural rights, which he believed were inherent and inalienable. On his view, these rights were derived from nature and reason, and they included life, liberty, and property. In fact, in Rights of Man he argued that governments are established precisely to protect those rights and that any government that fails to do so is illegitimate. On the other hand, among the most famous remarks Bentham ever made was his calling the idea of natural rights “nonsense upon stilts.” He was confident that observance of the principle of utility is all that is needed to ensure the excellence of any government. So, while both men called for roughly the same sorts of public policies, they couldn’t have been farther apart with respect to their conception of what grounds democratic principles. Natural rights for Paine, group well-being for Bentham. Can this “identity in difference” be explained, and if not…who was right?

Straightforward Benthamic hedonism isn’t particularly popular these days, largely because piling up pleasures for a bunch of people doesn’t seem to most  commentators to make up for the pain that might be involved in doing it. So, for example, most of us  don’t think it’s OK to steal a bunch of organs from some poor schmuck sitting in a hospital waiting room to pick up his wife after her colonoscopy, even if those organs would be used to save five (possibly “more important” or “useful”) people’s lives. 

The thing to note about our intuitions here is that they are about morality: what seems right or wrong to us. But we can talk about how governments ought to be set up, without taking the “ought” there as an ethical term. We can take all the talk of “should,” “ought,” “right,” and “good” to be about another sort of value altogether, the prudential kind. Prudential values aren’t about what is good or right or ought to be done; they are about wellbeing–what is good for some person or group. So some act might be good for me or my family and still be horribly wrong to do. Say, I need a kidney, it might be good for me for one to be illegally taken from the guy in the waiting room, but that wouldn’t make it ethically appropriate.

One of the interesting differences between moral and prudential values is that the latter do seem capable of being summed in a way that the former can’t be. If some action would increase the wellbeing of a bunch of people in a group and lower the total wellbeing in that group by a smaller amount, it seems correct to say that total prudential value has increased. At least it has increased up to that date, for it may be that future wellbeing will be decreased if actions of that type are regularly undertaken. So, while (moral)  goodness doesn’t seem summable in that way, prudential values do. 

My suggestion for my readers is to now take all the recommendations of Paine and Bentham and think of them as being exclusively within the province of prudential values. Do you agree with me that the differences no longer seem so profound? 

On the other hand, if moral claims are intended, reconciliation seems to me much more difficult. For in the area of ethics, the two thinkers begin with very different axioms. 

I hope this helps. Either way, I may pick the matter up in a future blog on moral (and other) axioms.         

****************************

A few relevant quotations

Form a constitution with such distinctions of rights, as shall expel the poor, or cause them to draw off into other states, and the rich will soon supply their places by becoming poor themselves, for where there are none to labour, and but few to consume, land and property is not riches…..Men who either do not, or by some fatality cannot penetrate deep enough into consequences, may please themselves with an idea of a distinction of rights in point of fortune, but it is the worst policy they can pursue. They will decay under it…..[T]heir assumed distinction of rights cease to exist, from the want of objects to exercise it over.

Rights are permanent things, fortune is not so; therefore the uncertainty and inequality of the latter cannot become a rule to the certainty and equality of the former.

The toleration act in England, which granted liberty of conscience to every man, in religion, was looked upon as the perfection of religious liberty. In America we consider the assumption of such power as a species of tyrannic arrogance, and do not grant liberty of conscience as a favor but confirm it as a right. And in so doing we have in point of justice exceeded every part of the known world.

There are some points so clear and definitive in themselves that they suffer by any attempt to prove them….

[These are all from Paine’s, “A Serious Address To The People Of Pennsylvania On The Present Situation Of Their Affairs”]

*************************

The principal defect in the constitution of 1776, was that it was subject in practice to too much precipitancy, but the ground work of that constitution was good. The present constitution appears to me to be clogged with inconsistencies of a hazardous tendency, as a supposed remedy against a precipitancy that might not happen. Investing any individual, by whatever name or official title he may be called, with a negative over the formation of the laws, is copied from the English government, without ever perceiving the inconsistency and absurdity of it, when applied to the representative system, or understanding the origin of it in England.

It is from [an] assumed right, derived from conquest, and not from any constitutional right by compact, that kings of England hold a negative over the formation of the laws; and they hold this for the purpose of preventing any being enacted that might abridge, invade, or in any way affect or diminish what they claim to be their hereditary or family rights and prerogatives, derived originally from the conquest of the country. (2) This is the origin of the king of England’s negative. It is a badge of disgrace which his parliaments are obliged to wear, and to which they are abject enough to submit. But what has this case to do with a legislature chosen by freemen on their own authority, in right of themselves? Or in what manner does a person stiled governor or chief magistrate, resemble a conqueror subjugating a country, as William of Normandy subjugated England, and saying to it you shall have no laws but what I please? The negativing power in a country like America, is of that kind, that a wise man would not choose to be embarrassed with it, and a man fond of using it will be overthrown by it.

This negativing power in the hands of an individual ought to be constitutionally abolished. It is a dangerous power. There is no prescribing rules for the use of it. It is discretionary and arbitrary; and the will and temper of the person at any time possessing it, is its only rule.

The complaint respecting the senate is the length of its duration, being four years. The sage Franklin has said, “Where annual election ends tyranny begins:” and no man was a better judge of human nature than Franklin, nor has any man in our time exceeded him in the principles of honor and honesty.

When a man ceases to be accountable to those who elected him, and with whose public affairs he is entrusted, he ceases to be their representative, and is put in a condition of being their despot. He becomes the representative of nobody but himself. “I am elected, says he, for four years; you cannot turn me out, neither am I responsible to you in the mean time. All that you have to do with me is to pay me.” — The conduct of the Pennsylvania Senate in 1800, respecting the choice of electors for the presidency of the United States, shews the impropriety and danger of such an establishment.

The senate is an imitation of what is called the house of lords in England, and which Chesterfield, who was a member of it, and therefore knew it, calls it “the hospital of incurables.” The senate in Pennsylvania is not quite an hospital of incurables, but it took almost four years to bring it to a state of convalescence.

The Pennsylvania convention of 1776 copied nothing from the English government. It formed a constitution on the basis of honesty. The defect, as I have already said of that constitution, was the precipitancy to which the legislatures might be subject in enacting laws. All the members of that legislature established by the constitution, sat in one chamber and debated in one body, and thus subjected them to precipitancy. But this precipitancy was provided against, but not effectually. The constitution ordered that the laws, before being finally enacted, should be published for public consideration. But as no given time was fixed for that consideration, nor any means for collecting its effect, nor were there then any public news papers in the state but what were printed in Philadelphia, the provision did not reach the intention of it, and thus a good and wise intention sank into mere form, which is generally the case when the means are not adequate to the end.

The constitution of ’76 was conformable to the Declaration of Independence and the declaration of rights, which the present constitution is not; for it makes artificial distinctions among men in the right of suffrage, which the principles of equity know nothing of; neither is it consistent with sound policy. We every day see the rich becoming poor and those who were poor before becoming rich. Riches, therefore, having no stability, cannot and ought not to be made a criterion of rights. Man is man in every condition of life, and the varieties of fortune and misfortune are open to all.

Had the number of representatives in the legislature, established by that constitution, been encreased, and instead of their sitting together in one chamber and debating and voting all at one time, to have divided by lot into two equal parts and sat in separate chambers, the advantage would have been, that one half by not being entangled in the first debate, nor having committed itself by voting, would be silently possessed of the arguments, for and against, of the former part and be in a calm condition to review the whole. And instead of one chamber, or one house, or by whatever name they may be called, negativing the vote of the other, which is now the case, and which admits of inconsistencies even to absurdities, to have added the votes of both chambers together, and the majority of the whole to be the final decision. There would be reason in this, but there is none in the present mode.

The fundamental principle in representative government, is, that the majority governs; and as it will be always happening that a man may be in the minority on one question, and in the majority on another, he obeys by the same principle that he rules. But when there are two houses of unequal numbers, and the smaller number negativing the greater, it is the minority that governs which is contrary to the principle

While Royalty is harmful from its very nature, hereditary Royalty is, in addition, absurd and disgusting. Just think of it! Yonder is a man who claims that he has a hereditary right to rule me! Where did he get it? From his ancestors, he says, and from mine. But how could they give him a right they did not possess? No man has power over posterity. I can no more be the slave of those who went before me than I can of those who now exist. If we

returned to life, we could not rob ourselves of the rights acquired in a second existence; still less could we rob posterity of their rights.

A hereditary crown! A throne to be handed over to a successor! Why, it is to treat our posterity as a herd of cattle who are entirely destitute of either rights or will. No more infamous and indecent illusion ever disgraced humanity than that the people is a herd which may be transmitted from one king to another.

[These are all from Paine’s “TO THE CITIZENS OF PENNSYLVANIA ON THE PROPOSAL FOR CALLING A CONVENTION–1805]

************************

The supreme operative body should act without division.

2. It should not act in so many as two bodies: even though

the members were located by the best compounded set of locators

-i.e. Electors,-much less in more than two.

2. Much less should it be composed of two or more independently-

operating bodies-each taking cognizance of the same

measure after the other.

3. Still less should enter into the composition of it a body of

men located by a Chief Functionary, or set of Chief Functionaries,

established for the purpose, sitting for a long term of years

or for life.

The will of the people is determined by the interest of the

people: so far as that interest is understood by them.

It not being understood, is not to be presumed: for if not by

them by whom else is it understood?

The greater the number is of its seats of authority, through

which a useful measure must pass before execution and effect can

be given to it, the greater the number of stages at which sinister

interest may apply itself to encounter and obstruct it.

[7] Q. What can have been the cause or causes why a second

chamber where the members are located on the same principle

has been added to the first.

Answers-I. The supposed probability or fear of precipitation,

and the hope of obviating it. 2. The principle of imitationauthority-

begotten prejudice.

Q. The evil of precipitation (its degree of probability taken

into account) does it seem to be of such a magnitude as to warrant

the application of such an institution in the character of a

preventive remedy.

A. Hardly. For 1. the evil of additional delay is an evil that

applies itself to every measure-2. So does the evil of complication-

in every individual case the existence of every one of

them is certain.

As to the good, the only case that affords an inlet to it, is that

in which a pernicious measure, which would have passed had

there been but one Chamber for it to pass through is prevented

from passing by being thrown out by the Second Chamber. To

be on sufficient grounds assured that in this case preponderant

good has been the result of the operation-if this instrument has

had preponderant good for its results, these two distinguishable

points must be established-viz 1. that the law or measure if

carried into effect would have been pernicious-2. that had there

been no second chamber it would not have been thrown· out in

the first. For, as to this latter point, a state of things not incapable of 

being realized is that, in being assured that the measure

will not pass the second· Chamber, many of those who would

otherwise have opposed it in the First Chamber, are by one consideration

or other kept back from meddling with it.

In proportion as the result of the division or rather multiplication

of barriers that must be passed through ere a measure

reaches the end of its career, is favourable to factitious delay, factitious

delay is resorted to in preference to argument. But it is in

the nature of argument, on the supposition that the end pursued is

the universal interest and not particular interest : that the farther

from being preponderantly beneficial a measure is-the more

likely it is to be put aside by argument; the more highly beneficial,

the less likely to ~ thus put aside: whereas factitious delay contributes

according to the length of it-c:ontributes in the same

proportion in the one as in the other, to put aside the best and the

worst.

If, in consequence of precipitation, a measure the effect of

which is upon the whole preponderantly evil receives the sanction

of law, the evil is not incapable of being removed by a subsequent

law: whereas whatever is the sum of the delays produced in all

measures without distinction by the dilatory system remains for

ever uncompensated.

True it is that where by reason of precipitation, a measure

productive of a balance on the side of evil receives the sanction

of law--so long as the law remains unrepealed, the evil continues

on the increase. But, by the supposition, being, as it is, indebted

for its existence to precipitation and nothing else-being such that

had it not been for the precipitation, it would not have passed but

would have been rejected-rejected before the evil had begun to

show itself--still more surely will the system be rid of it, and now

that the correctness of the general anticipation judgment has been

demonstrated by experience.

For the formation of a well-grounded and well matured

judgment in relation to this subject, take the body of experience

already obtained in the Congress of the Anglo-American U. S.

Take any year or number of years : take an account of the whole

number of laws passed & rejected within that time, and say

1. Total number of laws introduced into the Senate from the

House of Representatives so many-

2. Whereof passed, so many

3. Rejected, so many

Then take in hand the number of those rejected & say

4. Introduced & passed in a subsequent Session, so manyOf

these, unless some special & adequate reason to the contrary,

it ought to be assumed that they have upon the whole

been & continue to be of a beneficial natures.

Of those rejected, pernicious, upon the whole, upon a present

view, if any, so many-

6. Of those rejected, pernicious, as above, but which had it

not been for the existence of the Senate, would it is now

supposed have been rejected by the Chamber of Representatives,

so many-

7. Of those rejected, deemed now upon a maturer view of the

Subject, beneficial upon the whole, so many.

Such is the plan recommended to each individual for the formation

of his own particular opinion.

Supposing the balance, in this account of aptitude, of good &

evil in all other shapes to hang exactly even, the consideration of

expense will suffice to turn it, & the scale with the Second Chamber

in it will kick the beam.

[These are all from Bentham’s ANTI-SENATICA of 1830]

How to be be Right, Good, and Popular Without Being Interesting

 

There may be nobody more beloved by the American left these days than Prof. Cox Richardson. She's not only a progressive academic, she's also a prolific social media content provider. (I love getting a chance to put all these today words in one sentence!) Unfortunately, her recent book, Democracy Awakening, is very pedestrian. I'm afraid that there won't be a single new thing to be found in it by anybody who watches or reads or listens to the news at least a couple times a week (unless, of course, it is being watched or read on Fox, Newsmax, Parler, Truth Social, etc).

What one will find here is this kind of thing: Trump is no Lincoln! He's not just ignorant but in every conceivable way awful. He's a convicted felon. MAGA is very dangerous to democracy (and women and Blacks). These deplorables are voting against their own interest. They are the bad, radical Americans while their opponents are the good, traditional Americans. The heroes. That's about it. 

If you can find it in this book, you've also seen it countless times on CNN or MSNBC--or even ABC or PBS. There's really nothing added--except maybe the weird claim that all the cowboy TV shows of the 60s were insidious and harmful to our way of life. And Richardson offers no suggested solutions to our current crisis other than pressing us to vote for the good guys. Of course that will matter only in a handful of counties in the country. On the other hand, to its enduring credit, this book DOES have Richardson's name on the cover.

Anyhow, my complete review is here. I readily admit though, and with considerable embarrassment, that there's not much new or exciting to be found in my piece either. It turns out that this type of work imposes severe limits on would-be pundits. 

I mean, I do mention David Byrne a couple of times, but, to be fair, Richardson discusses Michael Landon, and not only in connection with his turn as Little Joe Cartwright on Bonanza but also with respect to his role as Laura Wilder's Pa Ingalls! Not even a draw. ☹

Can ANYTHING Be Done?

 

Naturally, many Americans are extremely concerned about the upcoming Presidential and Congressional elections. I include myself in this group. Even those who are seemingly safe under their beds have a lot to be worried about. 

But from my prone, dusty perspective, the recent Supreme Court decisions regarding Presidential Immunity and the regulatory authority of Executive agencies are much more concerning because they will remain in effect whoever wins in this election. Other less recent decisions have also made the country either explicitly much less democratic--like Citizen's United, or much less satisfied with the laws that intimately affect them--like Dobbs.

Are matters entirely hopeless? Given the current  provisions of our Constitution and the the current composition of the Court and the cultishness of one of our two major parties, it seems to me quite difficult not to answer this in the affirmative. One of these conditions could be altered by immediately "packing" the Court, but, presumably any such solution would be short-lived. It would surely be "unpacked" (and perhaps "repacked") by any Executive that doesn't like how it looks at any given time. And it seems to me that most of the Constitutional alterations that I have seen proposed over the last decade would do little given the current Supreme Court's willingness to interpret whatever turns up there in any fashion a certain Executive would prefer.

Would anything help, assuming for a moment there was actually time for it to be accomplished before the next election? Well, given the near impossibility of amending the U.S. Constitution, I'm afraid the answer is NO, no matter how much  time was available. But I can think of  some Constitutional provisions that, if, per impossibile, could somehow be shoved into our outdated "founding document," would have amazing curative powers. 

The U.S. citizenry simply must have the power to recall Federal elective officials and reverse Supreme Court decisions. There should also be the possibility of Federal referendums. I'm not sure anything short of these admittedly huge alterations could provide much more than temporary symptomatic relief.

I wrote about these issues in some detail in my book (the amount of detail was partly a matter of what I now think was an error in my thinking about Reversal). Under our current dire circumstances, I will reproduce most of this material here. As I do this, I will point out (using braces { } and courier font) the mistakes I think I made in the book. This material is all from Chapter 9.

***********************

Recall, Reversal, and Referendum

While 19 U.S. states have provisions for the recall of state officials, it is doubtful that the recall of any Federal official is allowed by the Constitution. Where the term of office is two years or less, this makes sense. Recall elections are time-consuming and expensive—especially so for the individuals subject to them....

But a sensible term of, say, four to six years must always come with the possibility of recall by an unsatisfied electorate. And just as governors are subject to recall petitions in many states, the President of the U.S. must be removable, other than via impeachment. Trollope explains why:

We know that he can be impeached by the Representatives and expelled from his office by the verdict of the Senate; but this in fact does not amount to much. Responsibility of this nature is doubtless very necessary, and prevents ebullitions of tyranny such as those in which a sultan or an emperor may indulge; but it is not that responsibility which especially recommends itself to the minds of free men. So much of responsibility they take as a matter of course, as they do the air which they breathe. It would be nothing to us to know that Lord Palmerston could be impeached for robbing the treasury, or Lord Russell punished for selling us to Austria…. We are anxious to know, not in what way they may be impeached and beheaded for great crimes, but by what method they may be kept constantly straight in small matters… [T]hey must be…of one mind with the public. Let them be that; or if not they, then with as little delay as may be, some others in their place. That with us is the meaning of ministerial responsibility. To that responsibility all the cabinet is subject. But in the government of the United States there is no such responsibility. The President is placed at the head of the executive for four years, and while he there remains no man can question him… There are no reins, constitutional or unconstitutional, by which he can be restrained. He can absolutely repudiate a majority of both Houses, and refuse the passage of any act of Congress even though supported by those majorities. He can retain the services of ministers distasteful to the whole country. He can place his own myrmidons at the head of the army and navy, or can himself take the command immediately on his own shoulders. All this he can do, and there is no one that can question him. (1862, Vol. 2, Ch. 10)

And, Trollope adds with disdain, “Seeing that Mr. Buchanan has escaped any punishment for maladministration, no President need fear the anger of the people.” It is just such considerations as Trollope puts so well here that ought to make obvious that in Presidential systems too, a praiseworthy democracy requires the ability to recall all elected officials with terms greater than two years. State recall provisions vary, but I would recommend that a total of certified signatures equaling perhaps 25% of the number of voters in the last election for the office in question should be required to put the question on the ballot. A majority of those voting for recall in the recall election would prevail, but only if some minimum percentage of the electorate participates, perhaps 90% of the total number of those who voted in the election that put the individual in office. While such elections are indeed costly in many ways, democracy seems to me to require that recall of these officials be allowable at least once in any two-year period. Where any recall election is successful, a new election must be held as soon as possible.

Judicial “Independence” and “Separation of Powers”

It is interesting to note to what almost incredible extent the 18^th Century constitution-builders in America amplified Montesquieu’s “separation of powers” trope into a principle that could be used to fuel the fear of any scent of “despotism.”[1] I will be discussing this matter in relation to bicameralism and the executive veto shortly, but it is important at present to distinguish what any parliamentary system shows to be largely a red herring, from the separate, and I think defensible, tenet of judicial independence. This matter is important here because the precept of independence must be made to harmonize with democratic principles when considering the selection of judges and the prospect of the revisability of their decisions by the people. Obviously, judges—particularly those who will sit on the highest courts—must have a specific sort of expertise. While this may be true of legislators as well, judges are not correctly viewed as our representatives. Where legislators will be chosen largely because of the concord between the voters’ views and what the candidates say they intend to do, judges—while also having political perspectives—clearly need to have legal expertise of a type that the electorate is unlikely to be in a position to assess. {And, unlike elected officials, they should not be subject to recall.} But...if, as I think, high judges must ...be selected by the executive, the legislature, or both, there should be no imputation of “separation of powers” here. Such “independence” as is required must be consistent with a judiciary that will remain responsive to the general will. As Paine pointed out, the distinction of government into Executive, Legislative and Judicial branches is more a distinction of words than of things.

The sort of responsiveness needed, even among the judiciary, seems impossible where judges are elected for life terms. And as Croly 1914 warns, a too-powerful judiciary makes us a nation not of laws but of lawyer-sovereignty—a country ruled almost entirely by unaccountable attorneys.[2] Selection of judges by the executive and confirmation by the legislature thus seem to me appropriate, but only if appointments are for fixed (perhaps) 12-year, though renewable, terms. Those judges wanting to remain on their benches at the end of their terms should be required to apply for continued service to the executive, who could either agree or dismiss them and make alternative choices, with such decisions again being subject to confirmation by the legislature.[3]

Judicial independence is, of course, more than a matter of selection and retention or dismissal of judges. There must be reasonable confidence, not only among members of the judiciary, but among contesting parties, that decisions will be made based on the merits of cases, rather than political considerations or estimates regarding whether some decision may be overturned by an executive or legislative edict—or even by the results of a popular plebiscite. But such judicial power must nevertheless not be itself used to entirely upend the will of the people. As Amy Gutmann 1993 points out, judicial review of legislative acts must go no farther than delegation of popular control, and not move on to the complete alienation of it.

There has been no end of disputes about this issue, not only in academic works, and in legislatures and courthouses around the country, but on battlefields of the Civil War. There are today numerous subjects where one can find the demos on one side and the courts on another. Gun control is a good example. But thorny as they are, I believe these issues are resolvable if we correctly distinguish among types of cases. State legislatures and executives have long been jealous of what they take to be the rights of their constituents to live as they please, and they have been quite willing to set aside criminal and civil cases and focus their objections to judicial power on those specific matters wherein a Federal judge strikes down or preempts a state law or constitutional provision based on an interpretation of the (U.S.) Constitution or a Federal law.[4] The distinction the states have tried to make here is on the right track but insufficiently careful. Justice Marshall was right concerning some matters. There ought not to be “second-guessing” of the Federal government or its high court by a state {or other litigant.} There must be a final say regarding what is the foundation (or at least the current basic structural law) of any nation, and, since elections are not truth-tracking, voters should not be used to weigh evidence or re-try cases. Neither, however, should the Federal courts be substituting their judgments for what the people...want..... Thus, it seems to me that there are some court decisions {or better: some aspects of all decisions} that ought to be reversible by popular vote.... 

Disgusted about the regular striking down by various courts of popular legislation involving such matters as child labor, workers’ compensation, and sanitary conditions in tenements, Theodore Roosevelt wrote,

It is the people, and not the judges, who are entitled to say what their constitution means, for the constitution is theirs, it belongs to them and not to their servants in office—any other theory is incompatible with the foundational principles of our government. If we, the people, choose to protect tenement-house dwellers in their homes, or women in sweat-shops and factories, or wage-earners in dangerous and unhealthy trades, or if we, the people, choose to define and regulate the conditions of corporate activity, it is for us, and not for our servants, to decide on the course we deem wise to follow. We cannot take any other position without admitting that we are less fit for self-government than the people of England, of Canada, of France, who possess and exercise this very power. (Roosevelt 1912)

Roosevelt’s solution was not to move to a parliamentary system, but to require that a certain subclass of judicial decisions be subject to overturn by votes for reversal. He wanted the courts to be independent, but believed that such independence was more at risk from corporate and legal special interest groups than it was from “popular tyranny.” He gives some minimum deliberative requirements for these actions (e.g., the plebiscite would have to wait at least two years from the election of the legislature that enacted the law that was struck down), but he isn’t quite clear on how to interpret the results of these votes. He writes, “It is a matter of mere terminology whether this is called a method of ‘construing’ or ‘applying’ the constitution, or ‘a quicker method of getting the constitution amended’” (1912). This is glib, I think: it is important for any democratic populace to be able to know what is in its constitution(s). Roosevelt was wrong to suggest that this doesn’t matter, but the difficulty he points up with his remark is not easily handled. Both the constitutions and the statutes of all the various states involve specific methods for amendment, and they may not include language regarding “amendment via court decision” due to alleged unconstitutionality. Let me here provide my own tentative suggestion for the availability of reversal votes...

{I omit much of what I proposed here because I now think I was mistaken to try to categorize decisions as reversible or non-reversible based on the subject matter of the case at issue. What I now believe should be outside the citizenry's purview is any effect on the litigants who brought the case on which the disputed opinion arose. So, for example, if the new Presidential Immunity decision were to be reversed  (as I believe it should be), such reversal should not subject former President Trump to prosecution for any prior "official acts," but would apply to every President (including him) subsequently. In other words, it's not the subject of the case, but the extent of its applicability that matters here. The principle of non-retroactivity must be maintained for the rule of law to remain intact. But I think the following proposed phraseology from my book is still relevant.} 

A vote to overturn a decision of any court...shall be construed as a remand to the court issuing the decision as well as to the [relevant] legislature and executive. Such remand shall include instructions that either (i) the court revise its view of the conflict within some specified period of time; (ii) (a) the court advise the relevant legislature regarding how to draft [a law] producing substantially the same result... and (b) the legislature and executive enact this statute within the same specified period; or (iii) the court provide constitutional amendments that would, in the unanimous opinion of the judges, handle [any alleged conflicts] and request that such amendments be placed on the [appropriate ballot(s] forthwith. Said instructions must be clear that if, by the date specified within them, there is in effect neither a policy tantamount to that desired by the voters nor an amendment to the constitution on the ballot that would allow such policy in the opinion of that court, then each member of the court who voted that the legislation be struck down as unconstitutional be forthwith removed from his or her office for cause, unless either two-thirds of the legislature in question indicate by open vote that they are opposed both to enactment of any such legislation or constitutional amendment, or the executive of that government agrees that it is his or her own responsibility that no bill has been enacted and no constitutional amendment has been placed on the ballot.

It is quite likely that others can come up with a less convoluted procedure, but the reasons for at least some complexity should be clear.[5] The judges may have been quite right that [a] new law conflicts with one or more constitutional provisions; the legislature might pass new laws according to the judicial recommendations and have them vetoed, or the executive might receive nothing to sign that would address the matter. It therefore may be hard to find duplicity or, if it is found, it may be difficult to parse it. But what should not be lost in these weeds is the necessity, as Roosevelt, Croly, Beard and a number of other progressives understood, that some method must always be available for the people to get what they want. In a democratic country, citizens cannot be left, as the American people are today, with so little recourse to change things, to have their way.

The Referendum

I have not spoken highly of the initiative petition, instead taking an attitude that may make my views seem undemocratic.[6] It is my view, however, that considerable expertise and diligent study are necessary to make good laws, and that those achievements are not generally dispersed throughout a broad populace. Furthermore, the initiative is, as already indicated, highly manipulable. But the referendum, which enables only the striking down of statutes or executive orders the electorate does not like, is markedly different, and, within strictly demarcated areas, must be available. Surely, on such matters as whether a country should go to war, the population at large must not be relegated to the position of ineffectual boosters or protesters. It is generally fairly easy for people to know that they don’t want this or that thing that has been thrust upon them. I believe the mechanism for overturn of a law should be similar to that suggested above for the recall of an elected official: there should be minimum numbers set for both signatures and Yea votes. And the demand for substitute action by the legislature or executive (though not instructions regarding precisely what it must be, which would turn the event into an initiative) could be required. The point is that spontaneous actions by legislators and executives must be subject to repeal by referendum—as long as the issues do not involve matters that are fundamental to democratic principles....

The voters know better than anybody else can what they want and don’t want. Their representatives are expected to be able to go some way in figuring out what to do with that information. But neither the voters nor their representatives may know whether such actions will be “good for the people.” That matter calls for special sorts of scientific expertise, as it is a function of what various courses of action can be expected to produce in terms of future attractive options and successful choices. Neither the general populace nor their representatives ought to be expected to be extremely proficient in that area of prognostication. It is not always easy to disentangle the wants both from the ways and from the expected and actual values of the results: there will be overlaps, gaps and disagreements.[7] But democracy should allow us to do the best we can. The availability of referendums ensures that neither representatives nor experts appointed by legislatures or executives can usurp the basic democratic right of the people to indicate what they don’t want—and have what is unacceptable removed where possible.

As noted above, it is reasonable to be concerned that a “majority veto” by the electorate at large could cost minorities gains that they might make in legislatures through logrolling or strategic contributions, because, while intensities matter in deliberative bodies, they do not play where we simply count heads.[8] But while a distilled populism intentionally ensures equal {treatment, protection, and even more than than equality suggests with respect to} voice to minorities, it should not be expected to provide strategies to achieve minority rule. The people at large must be convinced {of all matters not involving democratic principles}. Of course, it is not always possible to know that our representatives actually approve of some action or do so in light of their general agreement with us on the issues: it may be that they are lying or have been bought. Vigilance is crucial in the area of public corruption, and the opportunity and means to cure illegitimate encroachments must be in the voters’ arsenal. In a word, the Progressives of Teddy Roosevelt’s time were right about the gradual usurpation of the people’s power, even if their proposals need tweaking. Confusions and conflations (as well as the intentional smokescreens sent up by traditional liberals and conservatives) have managed to deprive U.S. citizens of real democracy since the country’s creation. Yes, equal protections must never be violated. Yes, the judiciary must be independent {with respect to certain matters}. No, we cannot allow tyranny—even by the people. But it is possible to have real democracy for all that.

 

---

Footnotes

[1] An excellent discussion of this metamorphosis can be found in Gordon Wood 1969. It is fascinating to discover that at the time of to the signing of the Articles of Confederation, many of the individual states were extremely democratic, providing limited terms for judges, broad impeachment processes, little in the way of executive vetoes of legislative actions. As J. Allen Smith (1907, Ch. 2) notes, “In this respect the early state constitutions anticipated much of the later development of the English government itself.” Smith attributed this radicalism to the fact that the checks and balances in the English system and in the colonies first established in America “resulted from the composite character of the English Constitution—its mixture of monarchy, aristocracy, and democracy.” When the democratic spirit grew in the new world, there (at first) seemed little reason to retain all the restraining mechanisms. And so the Articles, like the state constitutions, entirely omitted them.

[2] “No reverence for the law can guarantee political and social liberty to a body of democrats who confide their collective destiny to written formulas as expounded by a ruling body of lawyers. In practice each of these systems develops into a method of class government. The men to whom the enormous power is delegated will use it, in part at least, to perpetuate the system which is so beneficial to themselves.” (Croly 1914, 279) See also the careful demonstration of the unavoidable defects of judicial lawmaking and the consequent importance of legislative codification in Austin (1869 Lect. XXXIX).

[3] Dismissals and appointments should be considered separate actions, since the legislature ought to be able to overturn a dismissal, perhaps by a 3/5 vote as if it were a veto. Since I have criticized the use of super-majorities above, I should note here that I have no problem with them when they are used exclusively to overturn contrary (simple majority) actions by another legislative branch or the acts of an executive elected by the same (or roughly the same) electorate.

[4] See, e.g., Ransom 1912, Culp, 1929, and Beard, 1912.  This issue was a stalking horse for Teddy Roosevelt during his Progressive period.

[5] A simpler, if less radical approach, according to which legislatures may overturn certain types of judicial decisions has recently been suggested by Ganesh Sitaraman 2019.

[6] As already indicated, that is the response that I’d expect to be taken by Nadia Urbinati, given what she says in Democracy Disfigured. (Urbinati 2014) For a more favorable view of strictly “yes/no” plebiscitary arrangements, see Jeffrey Edward Green 2011. My own view, like Croly’s, falls somewhere in between.

[7] Urbinati 2014 is instructive on the nuances of what she calls the “diarchy” of decisions and opinions.

[8] See, e.g., Clark 1998.

****************

You will remember of course, that I said at the outset of this post that changes of the sort I seek are all but impossible. Simply hopeless. Matters are just too dire. I believe, nevertheless, that it is good to know what one ought to strive for. Philosopher Mark Norris Lance reminded me the other day of this particularly fitting (and moving) quotation: 

“I wish it need not have happened in my time,” said Frodo.

“So do I,” said Gandalf, “and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us.”

First Brief Comment on the Immunity Decision (the Rebuttable Presumption Theory)

All of you will of course have read or heard by now that the Supreme Court, has by a 6-3 majority, recently distinguished two sorts of "official acts" a U.S. President may engage in: those that are explicitly reserved for our nation's chief executive by language within the Constitution (or are at least implied by this Court's extremely robust theory of the separation of powers), and those that are not dispositively out of prosecutorial range, but are nevertheless related somehow to the President's explicitly enumerated Constitutional responsibilities--even if only peripherally. 

What has been frequently written, broadcast and posted about what the Court said about this division of Presidential activities is that the first group must have "absolute immunity" from prosecution, while the second group is afforded only a presumption of immunity, one that may be rebutted by prosecutors at trial. 

That isn't quite right, though.

Here's what the Roberts decision actually says about this matter:

"We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient."

"The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct."

"[W]e conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility."

"At a minimum, the President must...be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch."

"The President...therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts."

As you see, no fewer than five times did the Court quite clearly indicate that there is at least or at a minimum a rebuttable presumption of immunity for any ex-President who is accused of violating a criminal law for any even marginally "official" act taken while President. It thus seems to me quite obvious that the Roberts Court has given an unmistakable warning that (assuming Trump does not win the election and make this whole business go away forever) if a lower court were to hold that a presumption of Trump's immunity from prosecution were effectively rebutted by the prosecution in the case of his attempted coup or fraudulent elector scheme, it would be perfectly consistent for SCOTUS subsequently to decide on appeal that having a rebuttable presumption of immunity just turns out to be insufficient to afford certain Presidents who may want to take bribes or effect coups or overturn elections the certainty of stress-free retirements. For, as they repeatedly told us, we don't want our Presidents to be afraid to be bold!

So, contrary to a lot of reports about this decision, Roberts and his colleagues have made it crystal clear that granting Trump something better than a mere rebuttable presumption of immunity is precisely what we should expect in the unlikely event that this case somehow continues to survive its long swirl around the drain for another trip to the immense heights of the Supreme Court of the United States, our absolute guarantors of equal justice for all.