Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, November 25, 2008

More on the Tyranny of the Majority In California

Recently, I posted an argument that Prop 8 was a perfect example of what the men who wrote the US constitution were trying to avoid.  I argued that direct democracy was inherently prone to the tyranny of the majority.  Law Talking Guy defended direct democracy in two ways (as I understood him).  First he pointed to several policy changes achieved through direct democracy that he presumed would be seen as universally good things but which had been held up by grid-lock in the legislature. To this I responded that there are of course examples of referenda doing things that everyone on this blog would agree are beneficial but that does not mean they are not examples of tyranny of the majority - it only means that in those cases, we were on the winning side.

Second, he contested my assertion that the men who wrote the US constitution saw direct democracy as inherently flawed.  He said "I don't think the Federalists were overly opposed to public participation of this sort as ipso facto evil."  However, there is considerable evidence that they did think direct democracy was - if not "ipso facto evil" at least a very bad choice of institutions that should be avoided.

Here is a quotation from Federalist 10.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

Here is a link to a wikipedia site that itself refers to a number of quotations by prominent American political thinkers at the time of the Constitution's establishment who saw direct democracy as deeply flawed.  Some of my favorites are:

Pure democracy cannot subsist long nor be carried far into the departments of state - it is very subject to caprice and the madness of popular rage" - John Witherspoon

"That a pure democracy if it were practicable would be the most perfect government.  Experience has proved that no position is more false than this.  The ancient democracies in which the people themselves deliberated never possessed one good feature of government.  Their very character was tyranny; their figure deformity." - Alexander Hamilton.

Direct democracy is not bad because it produces a single bad result - like Prop 8. It's bad because it fails to protect the rights of minorities against the fluctuating whims of the majority.  Sometimes we will find ourselves on the winning side of those whims and we think direct democracy is great.  But when we are on the losing side we realize how obnoxious it is to make laws in this way.  If I only complain when direct democracy hurts my side, I'm a hypocrite.  If I think the problem with direct democracy is that sometimes the wrong majority wins, I'm missing the point.


The Law Talking Guy said...

RBR, these passages are about town-hall style direct democracy, not about whether referenda are always good or bad. The dynamics of a town hall meeting are very different from that of a campaign for an initiative as a supplement to the sitting legislature.

Why is it so hard to conceive that there may be limited uses of referenda as a supplement to a system of representative government? I have repeatedly explained this, but apparently I must either endorse direct democracy in all cases or none, or be called a hypocrite. That's not cogent.

Let me repeat it again: representative government has one primary flaw, and that arises where the legislators have incentives to protect their status as legislators. They will, for institutional reasons, oppose extensions of the franchise, measures to end gerrymandering, or challenges such as term limits. Referenda have a place in our system to overcome institutional blockages caused by having a legislature. This is not a matter of approving of direct democracy only when it suits my desired outcomes. Rather, it shows that there are institutional flaws in legislative bodies to which referenda can be an appropriate check.

The tyranny of the majority can act itself out through legislatures as through referenda, which is why the check on both is (1) judicial and (2) other legislative mechanisms and bodies (e.g., federalism).

Evan Ravitz said...

Reread Federalist 10: "pure democracy, by which I mean a society consisting of a small number of citizens..."

It's easy with modern media to have a LARGE number converse and vote on the laws.

The bestsellingWisdom of Crowds gives overwhelming evidence that LARGE, diverse groups make better decisions than any elite.

Ballot initiatives are the origin of most reforms, such as women's suffrage (passed in 13 states before Congress went along), direct election of Senators (4 states), publicly financed elections (passed by initiative in 6 of 7 states with them), medical marijuana ( in 9 of 13 states) and increasing minimum wages (in all 6 states that tried in 2006). See for more examples and references. The media have seized on the problem initiatives. They generally kiss up to politicians.

Raised By Republicans said...

Both LTG and Evan Ravitz miss the point of Federalist 10 entirely. The number of people is not the reason "pure democracy" is the problem. If it were, then Evan would be correct that modern technology would enable more people to have the kind of "discussions" that are alluded to in Federalist 10.

But if you read the entire argument through, you will see that is not the number of people discussing or voting but the nature of a simple majority vote being taken on an important matter under a closed rule. A closed rule means no amendments or negotiations are possible. Simple majority means that 50.001% of the people can do absolutely anything to the other 49.999%.

Evan also raises the argument that because he sometimes agrees with the results of referenda, they are always good. For every referendum that Evan likes I'm sure I can find one he does not. What, I wonder, does Evan think of Prop 8? Or Prop 13? Or Prop 187?

As for the media: Kissing up to politicians who are duly elected and accountable to voters is no worse and possibly better than kissing up to the fickle wishes of the mob whipped into frenzy after frenzy by the same vilified media.

Re: the Wisdom of Crowds. Are we to take it then that you think that Prop 8 and Prop 13 are obviously and objectively superior policies to the situations they replaced?

I don't have a big problem with the supposed evils off gerrymandering. I'm also far from convinced that "normal" looking district shapes are inherently better than "odd" looking districts. Nor am I convinced that districts that favor centrist candidates automatically better than districts that favor politicians of extreme preferences. That said, I wouldn't have a huge problem if referenda were limited to things like recalls of corrupt officials and if they were constrained by super majority requirements.

But in nearly ever case referenda are always a bad idea and bound to really screw somebody. Prop 8 is merely the most recent example.

Raised By Republicans said...

I will also add that not every major reform has come from referenda. The Civil Right Act and the emancipation of slaves not only were legislative acts proposed, negotiated and passed by "politicians" but they would never have been enacted if they were only to be voted on by referendum.

In a related area: In some Cantons in Switzerland, they use referenda to approve naturalized citizenship. Every voter gets a say on who gets to join their group. Guess what happens if you want to be a Swiss citizen in these areas and your name is say something like Barack Obama.

Dr. Strangelove said...

RbR: Is it your contention that referenda should never be permitted? Unless that is the case, then the real question here is, "Under what conditions should referenda be permitted?"

Please note that LTG has said very clearly that he only supports certain limited uses of referenda to supplement our system of representative government--specifically, in situations where the legislators themselves have a direct conflict of interest, such as term limits.

Personally, I think requiring 2/3 majority approval to pass any Constitutional Amendment referendum would end 90% of the abuses. Allowing the legislature to alter statues passed by initiative as they would alter any other law would end most of the rest.

Dr. Strangelove said...

RbR is right, however, that the normal legislative process can bring about great reforms.

It is important to remember that California's system of initiative, referendum and recall was not created through initiative, referendum, or recall. Rather, it was Gov. Hiram Johnson who ran for office on a platform of reform, and managed sweep enough of his supporters into legislature to make it happen.

It would be ironic, though, if Hiram Johnson's successful crusade for direct democracy were used as proof that direct democracy was not, in fact, necessary.

The Law Talking Guy said...

If you read the Federalist papers, RBR, you will see that the main evil Madison and Hamilton were talking about was "faction." They believed they had designed a system that would prevent the evils of "faction." This was their only real mistake in designing the system, because factions emerged immediately and have persisted.

Their concern about the tyranny of the majority was a concern about tyranny, not about majority rule. They adopted a system of checks and balances that included majority rule only in electing the lower house. This was extended to the upper house in 1913. Few would argue that allowing direct election of senators - a dramatic change in the Madisonian system that disempowered states - was a mistake. It added majoritarian rule into a part of the federalist system.

We also didn't have judicial review built into the original system as we understand it today. For most lawyers, the phrase "tyranny of the majority" comes up only in terms of legislation designed to harm racial, religious, or ethnic minorities. The conclusion of most is that such issues should not be left to legislative activity at all (legislatures or referenda), and the judiciary is the proper safeguard of minority rights in this situation. Again, this is a tweak or a change to the initial system.

Referenda are just another sort of tweak on the system. The framers of the constitution did not include a provision for initiative legislation, but if they had done so, it would not be a massive contradiction or lead to tyranny.

Those who discuss referenda seriously will tell you that the purpose is to allow the people to bypass the legislature at times when the legislature is institutionally constipated. The problem with California's referendum and initiative system is not, as RBR would have it, that a referendum is always bad. The problem is that there are not sufficient checks on initiative legislation or referenda. They are allowed to encompass too many subjects, to infringe on the rights of minorities, and there is not even a supermajoritarian requirement for amending the state constitution.

I am curious, RBR, since I know you study the European Union. Is there some residual anger at referenda because they have twice sunk new constitutional treaties?

Raised By Republicans said...

Yes "faction" is a major concern as well. But they were also very concerned about majority itself. When Publius talks about fears of a majority expropriating a segment of society he (they) isn't (aren't) limiting their concerns to political factions.

Referenda can be used for good - but they are more likely to be used to play to the fickle whims of populists. The risks of disaster far outweigh the chances of benefits and since the referendum procedure is not a necessary nor sufficient condition for good laws, it is best to do away with it entirely.

I hadn't thought about the EU-referendum connection but to imply that I have an emotional stake in the results of some EU Treaty one way or the other is to misunderstand completely my thinking about the EU. It is an interesting phenomenon not a crusade.

I'll try to explain this better. When you have a referendum, you are proposing a change to the law (or worse to the constitution) to the great masses of voters under a closed rule. That means that when Prop X comes on the ballot, there is no opportunity to negotiate a compromise, no chance for fixing ambiguities or heading off unintended consequences. When you vote on a referendum, you can only vote "yes" or "no." That's radically different from the way most legislative processes work. That alone argues against referenda ever being used.

This procedure means that whoever writes the text of the proposed ballot initiative has enormous power over the policy. Prop 13 is a great example. A bunch of radical tax resister types wrote up a populist tax law that would never have had a snowball's chance in Hell of being passed by legislators and proposed it to voters. They bought it hook line and sinker largely because the status quo at the time was seriously flawed. However, the solution (Prop 13) was just as bad as, by some perspectives much worse that, the problem and California's public services and general fiscal health have been in a steep decline ever since.

Indeed, there are reasons to be concerned that referenda not only favor the tyranny of the majority but may actually empower the tyranny of the most demanding and best organized interest groups. Whoever gets the signatures can write the initiative and because of the closed rule voting can lead the state around by the nose - if they have access to a big enough ad campaign (like we saw with Prop 8).

When you combine the flawed, rigid and uncompromising voting system with the valid concerns about bare majorities riding rough shod over electoral losers (an argument that has not even been contested by my critics on this blog let alone refuted), we have a recipe for really disastrous policy making.

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The answer is....referenda should never be used when the issue involves basic individual human rights...and when identifiable minorities are subject to having their rights and privileges subverted by a hostile majority..and especially when the differences on the subject matter boil down to purely moral, philosophical or regligious differences. It's actually pretty simple and not hard to undertand what Madison feared. amend state constitutions to prevent referenda on issues that reach basic individual rights and freedoms.

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