Their Heads with Trifles Well Are Filled

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CHAPTER 1

WHY DEFEND DIRECT DEMOCRACY?

Their Heads with trifles well are filled,

In trifles they are deeply skilled;

And if some man, with sense endued,

Should in their presence be so rude

To speak like one who books has read,

And show he wears a learned head,

With anger fired they on him fall,

He's persecuted by them all.

Voltaire,

The Demagogues

A. Justification for the Project

I read Robert Paul Wolff's In Defense of Anarchism for the first time in 1982 as a requirement for a political philosophy course. I was both startled and intrigued by the chapter on "Instantaneous Direct Democracy." Before reading Wolff's chapter I had wondered occasionally why United States citizens always voted for candidates rather than voting directly on issues. As with most Americans, I had accepted unquestioningly the representative nature of our democracy.

After reading Wolff's book, however, I could not get the idea of direct democracy out of my mind. It was similar to what Kant had said after reading David Hume; it was "the very thing which many years ago first interrupted my

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dogmatic slumber."[1] Why not permit every citizen to vote directly on laws? We certainly have the technology to do so now; as Wolff had noted, we had the means back in 1970.[2] After all, given the instantaneous availability of information today, one of the fundamental reasons for representative government, i.e., the time it took to communicate and to disseminate information, is now a moot point.

Thirty years later, Wolff's book is now in its third edition. In the preface to the latest edition published in 1998, Wolff gives a summary of his position that I still find compelling. Wolff argues that all representative government of whatever sort is a compromise with the ideal of autonomous self-rule:

The only way to preserve autonomy while achieving collective self-rule is to demand unanimous direct democracy. In other words, autonomy can be preserved in the legislative process only if every person bound by the law participates directly in the making of the law, and furthermore only if each person is bound only by those laws for which he or she has voted.[3]

In addition, Wolff cites an argument made by Jean-Jacques Rousseau in which Rousseau claimed that representation was not much better than “voluntary self-enslavement.”[4] According to Rousseau’s famous passage in The Social Contract:

Sovereignty cannot be represented for the same reason that it cannot be alienated; its essence is the general will, and will cannot be represented—either it is the general will or it is something else; there is no intermediate possibility. Thus the people’s deputies are not, and could not be, its representatives; they are merely its agents; and they cannot decide anything finally. Any law which the people has not ratified in person is void; it is not law at all. The English people believes itself to be free; it is gravely mistaken; it is free only during the election of Members of Parliament; as soon as the Members are elected, the people is enslaved; it is nothing. In the brief moments of its freedom, the English people makes such a use of that freedom that it deserves to lose it.[5]

Underlying the passage above is Rousseau’s argument that the only way to be truly free is to lay down the law for oneself. This is, of course, the literal meaning of the word “autonomy,” since the word derives from the two Greek words: auto meaning “self” and nomos, which means, “law.” So to be truly free, in the sense of being autonomous, one must be self-legislating. In forming a contract with the community, one gives over one’s own selfish interests in exchange for following laws that are established with the common good in mind. The common good is determined by identifying what Rousseau calls “the general will.” Laws then are formulated in accordance with the general will. Since men have identified the common good and created the laws for themselves, they are truly autonomous and hence free. This being the case, if one gives up one’s participation in the making of the laws, then one is NOT creating the law for oneself, and this is antithetical to the very thing that makes us truly free, that is, self-legislation. Thus, the notion of a representative taking one’s place in the participation of making the laws is contradictory. This is why Rousseau concludes that appointing representatives to make the laws is “voluntary self-enslavement.”

Clearly, not many people agree with Wolff and Rousseau. As Wolff himself notes,

[T[he force and immediacy with which objections to direct democracy surface whenever the subject is mentioned merely demonstrates, if indeed demonstration were needed, that very few political theorists indeed really believe in democracy. Most commentators on public affairs prefer to place their trust in an elite class of professional politicians and policy experts.[6]

Nevertheless, Wolff continues to defend his position even thirty years later:

The fact remains that any legitimacy the commands of the state could possibly possess must derive not from the wisdom of the commands nor from the expertise of those who drafted them but only from the fact that they have been issued collectively by the same group of people who supposedly owe them obedience. Autonomy, which is to say self-legislation, is the only possible ground of legitimate authority.[7]

I do not agree entirely with Wolff that unanimous direct democracy is the only ground of legitimate authority. Majoritarian democracy, coupled with constraints designed to protect the rights of those in the minority, seems more reasonable and I do not wish to venture into the debate over what constitutes legitimate authority.[8] However, in concert with Rousseau’s and Wolff’s concerns about representation, I adopt the premise that every movement away from direct democracy lessens our autonomy. Conversely, every movement toward direct democracy increases our autonomy.

Wolff's ideas are not really new, of course. The dispute over representative versus direct democracy has been present in various forms throughout the history of political thought. Voltaire's poem, The Demagogues, is a clever expression of the ever-present tension between mass participation and rule by the elite--a concern dating back to Plato's view that democracy led to the rise of "demagogues."[9] This poem is on the frontispiece of a small volume entitled, Betts-Roosevelt Letters: A Spirited and Illuminating Discussion on a Pure Democracy, Direct Nominations, the Initiative, the Referendum and the Recall and the New York State Court of Appeals' Decision in the Workmen's Compensation Case. The Betts-Roosevelt Letters is just one example of the on-going debate over whether the citizenry can be trusted. It is an account of an exchange of letters between Charles H. Betts and Theodore Roosevelt in 1911.

In their correspondence the two engaged in a debate (reprinted as a series of editorials in The Lyons Republican) over a NY State Court of Appeals case involving the nomination of judges that resulted in an exchange over pure or direct democracy versus representative democracy. The letters are contentious and entertaining, but for my purposes, the debate can be summed up by the following quotations:

Betts: If the time ever comes when the courts of this country interpret the laws in harmony with ignorant public sentiment, fanned into flame by uninformed and ignorant yellow journals, it will be a sad day for this Republic.[10]

Roosevelt: My dear Mr. Betts, have you forgotten that the Republican party was founded largely to protest against the very type of view concerning the Courts which you now uphold…Have you forgotten what Lincoln wrote in his first inaugural…."If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the (court) ***(sic) the people will have ceased to be their own rulers."[11] [And] Those who favor direct nominations trust the people, while those who do not favor direct nominations do not trust the people.[12]

Betts: We who believe in the system of representative government, do trust the people. We trust them to act for themselves within the circle of activity where they can obtain correct information to act upon. We are in favor of trusting the people to pick out their candidates and their delegates in their immediate community…[13]

I selected these specific quotations because it will be evident in what follows that the sentiments in the current debate concerning direct versus representative democracy are not appreciably different from the exchange over whether the people can be trusted to nominate judges that took place almost one hundred years ago.[14]

Despite Wolff's argument and the fact that the idea of direct democracy has been around since ancient Athens, the prejudices against direct democracy are well known. Proponents of the arguments against direct democracy have ranged from Plato,[15] who described how democracy devolves into tyranny, to contemporary critics of the initiative process (a form of direct democracy), such as Washington journalist, David Broder.[16] While it may seem strange to rely on Plato’s criticism for the ancient critique and then turn to a Washington, D.C., journalist for the most recent criticism of direct democracy, this is due to the fact that there are not many contemporary political treatises written against direct democracy. With the exception of the occasional New England “town hall” type of local governance, direct democracy has rarely been practiced in America. Therefore, there has not been a need for contemporary political theorists to argue against it.

Similarly, since representative democracy is the status quo, there are not many contemporary political theorists offering justifications for representative democracy. There is one exception worth mentioning: George Kateb has argued that choosing representatives offers some moral benefit to voters.[17] I examine Kateb’s argument at the end of Chapter Two. Contra Kateb, I conclude that the benefits he describes may be fostered as readily by voting on laws directly as by voting on representatives, and there are no significant costs associated with direct democracy that would outweigh the benefits derived from it.

Since representative democracy is the predominant and well-accepted form of democracy today, theorists do not spend much time arguing for it. Therefore, most of the recent books on representation are about how representation should be achieved, not about whether representation is necessary.[18] Similarly since direct democracy has not been practiced in America until the recent upsurge of initiatives, contemporary theorists do not argue against direct democracy; rather they rely on arguments from earlier centuries.

For example, in the eighteenth century, Publius in the Federalist Papers argued that lack of virtue made it necessary for certain men of "fit character" to make the laws.[19] John Stuart Mill argued that people with more education should be favored with more than one vote.[20] Early in the twentieth century, theorists such as Vilfredo Pareto, Gaetano Mosca, Robert Michels and Joseph Schumpeter (the "democratic elitists") argued either directly or indirectly for representation in various ways. For example, according to Michels’s "iron law of oligarchy" a select group of individuals will always "rise to the top."[21] In a similar vein, Walter Lippmann (a twentieth-century elitist) argued that public opinion is a “phantom” and thus the general public cannot be trusted to legislate directly.[22]

Nevertheless, a movement toward more direct citizen legislation (or direct democracy) has been demonstrated by the dramatic increase in the number of ballot initiatives offered during recent elections in various states across the country over the last thirty years.[23] After all, if the current technology can support almost instantaneous information and on-line voting, then why do we need to elect an elite group of the citizenry or "representatives" to sponsor legislation? Why shouldn't the citizens just propose and vote directly on legislation rather than voting only on candidates? Or to pose the questions from a different direction, what is so wrong with initiatives? Why should we oppose direct democracy?

A partial answer to those questions can be found in a recent book entitled Democracy Derailed. In this popular book David Broder examines the initiative movement and the concerns surrounding it. The main argument of his book is that the initiative process or more “direct democracy" will result in "laws without government."[24] Broder argues that the initiative process is a "radical departure" from the Constitution's system of checks and balances.[25] Broder cites several examples of what he calls "policies . . . being made not by government but by initiative."[26]

In a single year, 1998, voters across America used the initiative process to pass laws or to amend state constitutions, achieving a wide variety of goals. They ended affirmative action, raised the minimum wage, banned billboards, decriminalized a wide range of hard drugs and permitted thousands of patients to obtain prescriptions for marijuana, restricted campaign spending and contributions, expanded casino gambling, banned many forms of hunting, prohibited some abortions, and allowed adopted children to obtain the names of their biological parents.[27]

Broder laments that "not one of these decisions was made through the time-consuming process of passing and signing bills into laws -- the method prescribed by the Constitution, which guaranteed the nation and each of the states the republican form of government. Rather, they were made by the voters themselves -- or whatever fraction of them constituted the majority on Election Day."[28] Broder is dismayed at the thought of American citizens voting on laws rather than voting on candidates. James Madison was also worried about this. As stated earlier, one of Madison’s significant themes in The Federalist Papers was that only virtuous statesmen should be entrusted with the making of laws.

In Federalist #10, Madison specifically argued against Rousseau's claim that sovereignty cannot be alienated. Madison composed three interrelated arguments—which I shall challenge later—to demonstrate that representative democracy was preferable to “pure” (direct) democracy in the new republic. Thus, representation was secured as central to the well being of the American government and prominent statesmen were to be selected, not only to make the laws, but also to appoint senators and elect the president and vice-president. However, since the ratification of the Constitution on March 4, 1789, the movement has been toward slightly more, if not greater, democracy. For example, by the beginning of the twentieth century the constitutional method of appointing senators had come to be viewed by most Americans as undemocratic. The Seventeenth Amendment (ratified in 1913) rejected the appointment of senators and allowed for senators to be chosen by popular election.

More recently the practice of the Electoral College[29] has been challenged, particularly since the 2000 presidential election. In that election the majority of the popular vote went to Al Gore but the majority of the Electoral College votes went to George W. Bush. This result has led many Americans to question the desirability of the Electoral College. In a CNN interview shortly after the November 2000 election, James Thurber claimed that most people now think that the Electoral College is outdated. According to Thurber, "The Electoral College was formed at a time when men in smoke-filled, or snuff-filled at that time, rooms decided the presidency…"[30]

Perhaps the time has come for a compromise. Just as there was the "great compromise" over how representation was to take place when the U.S. Congress was first formed—by population (in the House of Representatives) or by strict equality (in the Senate)—we may need another compromise, one between direct and representative democracy. Though we may still need state and federal legislators to enact some laws, other laws may be formulated by a form of direct democracy – the initiative process bolstered by what I term “legislative juries”—proposed in this dissertation. The movement toward more direct democracy may be the next great stage in the history of democracy in the United States. Whether it will lead to the decay and demise of democracy as envisioned by Plato remains to be seen. [31] Since my proposal adds the element of deliberation to the current initiative process, this should provide a necessary reform to this latest incarnation of direct democracy. If I have done my job well, the arguments contained in the following pages will give one hope that direct democracy does not have to lead to the disaster envisioned by Plato.

B. Description of the Project

So should we not support more direct democracy and not encourage Americans to vote directly on legislation? This question has led me to write this dissertation. The purpose of this dissertation is three-fold:

1)To examine the main arguments against direct democracy from the classic, modern, and contemporary eras.