Democracy Can’t Really Be Democratic by Ilya Somin

Recent debates over the meaning of “one person, one vote” and the lessons of ancient Greek democracy for the modern world highlight an important truth about democracy: it can’t be democratic all the way down.

Lincoln famously said that democracy is “government of the people, by the people, for the people.”

But before “the people” can govern anything, someone has to decide who counts as a member of the people, what powers they have, and what rules they will vote under. And that someone usually turns out to be a small group of elites.

Just as the world can’t be held up by “turtles all the way down,” so a political system can’t be democratic all the way down.

The Elitism at the Heart of Democracy

The ongoing litigation over the meaning of “one person, one vote” illustrates these points well.

Before the voters can decide anything at the polls, someone has to decide which voters will get how many representatives, and under what electoral rules. And that someone will turn out to be some combination of the Supreme Court and state legislators, depending on how tightly the Court chooses to restrict the discretion of the latter.

State legislators are democratically elected, of course, which means the voters will have some influence over their decisions. But in this instance, the legislators are determining the very rules under which they will stand for election in the first place, which gives them ability to constrain the electorate, as well as vice versa.

Ironically, the meaning of a principle that many people regard as a core element of American democracy is going to be decided by a relatively small elite.

Ancient Athens also exemplified the elitism underpinning democracy. While the Athenian citizen assembly had very broad powers over public policy, the right to vote in that assembly was narrowly circumscribed in ways that excluded the bulk of the population of the city.

And, at least in the first instance, the decision to exclude these people was not made democratically. Once the system was established, of course, the male citizens who had the right to vote were far from eager to extend the franchise to women, slaves, or the city’s large population of “metics” (resident non-citizens).

Committed democrats might say that such elitism can be avoided. Perhaps the rules of democracy can also be determined by a democratic process. The people themselves can decide the rules of the political game. For example, the US Constitution — which establishes the basic rules of the American political system — was ratified by conventions elected by popular vote.

But this solution simply pushes the problem one step back.

Before “the people” can decide the rules of the game, someone has to decide the rules under which that decision itself will be made (including the rules determining who qualifies as a member of the people).

In the case of the Constitution, while the people did indeed elect representatives to the ratifying conventions, it was a small elite at the Philadelphia convention that drafted the Constitution, decided that it would come into force if nine of the then-thirteen states ratified it, and chose to ignore the provision of the Articles of Confederation that required unanimous consent by all thirteen states before any amendments come into force.

Had the Philadelphia Convention followed its original mandate (which was merely to propose revisions to the Articles) or respected the unanimity rule, American political history might have turned out differently.

The point is not that the Founding Fathers were necessarily wrong to make decisions they did. It is that the decision-making process they followed was not — and could not have been — democratic all the way down.

Before a democratic process can even begin to function, some nondemocratic process has to make the rules. And those rules will have a major impact on the choices available to “the people” once they finally begin to have a say.

Why it Matters

Does it matter that democracy can’t be democratic all the way down?

The answer depends in large part on your reasons for valuing democracy in the first place. Even if its basic rules are the product of a small elite, democracy might still be superior to other political systems for a host of possible reasons.

If your support for democracy is premised on purely consequentialist grounds (e.g. — that democracy maximizes social welfare), you might not care much about how the democratic process got set up in the first place.

But the elitism at the heart of democracy does impact a number of common arguments for giving broad power to voters and elected officials.

One of the standard rationales for the idea that we have a duty to obey democratically enacted laws is that, thanks to the right to vote, we have consented to them. But we haven’t had a meaningful opportunity to consent to the rules under which the vote occurred in the first place. Many of those rules were established influential elites, in often centuries before any of today’s voters were even born.

In the 2016 election, those of us who can vote will get to decide whether the Democrats or the Republicans will control the presidency and Congress. But we won’t get to decide many of the rules under which that vote takes place, or whether the president and Congress should have so much power in the first place.

For these reasons, among others, voting does not entail any genuine consent to the policies enacted by the winners. This calls into question consent-based justifications for a duty to obey democratically enacted laws, and even consent-based justifications for the legitimacy of the entire apparatus of democratic government.

Another standard rationale for democracy is that it gives everyone (or at least all citizens eligible to vote) an equal voice. But that equality is severely limited if the most important rules of the system were actually set by a small elite, often before “the people” were even defined, much less allowed to decide anything.

Elite determination of the rules of the democratic game might also affect purely consequentialist rationales for democracy. While consequentialists may not care about the origins of the rules for their own sake, they might have good reason to worry that the elites who make the rules will skew them in their own favor.

There are many historical examples of such shenanigans. To take just one example, the elites who drafted the US Constitution included the notorious Three-Fifths Clause, which gave extra representation in Congress to slaveowners by enabling them to count slaves as part of the population base determining the number of representatives a state had (without, of course, giving the slaves any say in the selection of those representatives).

The inevitability of elite control over at least some phases of the decision-making process makes this sort of problem difficult to avoid.

Democracy’s inability to be fully democratic doesn’t do much to strengthen the case for dictatorship or oligarchy. After all, these systems are generally even more coercive and inegalitarian, as well as more prone to a range of other pathologies.

But the superiority of democracy over these rival systems should not blind us to its own significant weaknesses, or to the case for imposing tight limits on the scope of democratic government.

The elitism at the heart of democracy is far from the only factor we should take into account in evaluating political systems. But it is an important issue to keep in mind. At the very least, it should make us more skeptical of claims that some policy is wise or just because it represents the democratically enacted “will of the people.”

Ilya Somin

Ilya Somin is Professor of Law at George Mason University School of Law. He blogs at the Volokh Conspiracy.

EDITORS NOTE: This post first appeared at the Volokh Conspiracy.

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