Constitutionalism for Realists

Published June 21, 2017

Claremont Review of Books - Spring 2017 issue

America’s political institutions are consumed by a crisis of legitimacy. Public faith in our system of government has crumbled. Many believe it’s deeply corrupt, or rigged for the benefit of others. This view crosses party lines—or rather, our partisan divisions seem increasingly to turn on who is to blame for American democracy’s decline and fall.

The 2016 election results have swelled the ranks of those convinced that our democracy is a sham, particularly on the left. And the prominence of academics among them has boosted an already bourgeoning scholarly literature of democracy skepticism. Contributors to this fashionable genre differ on the particulars: most are elitist champions of meritocracy, as they understand it, but some make a more populist case against rule by experts. There are those who ground their case in empirical evidence of the ignorance of voters, others in some idea of justice or utility.

Essentially all, however, are agreed on one point: the case for democracy is hopelessly naïve, romantic, and overdue for refutation. Three books published in 2016—Jason Brennan’s Against Democracy, David Van Reybrouck’s Against Elections, and Christopher Achen and Larry Bartels’s Democracy for Realists—offer engaging introductions to key facets of the case. All are forceful, well written, and rooted in plainly genuine concerns for liberty or civic virtue. But both individually and in combination, they suggest a willful blindness to the challenges our country confronts, and the role that our constitutional republic’s institutions might play in addressing them.

Brennan, a professor of economics and public policy at Georgetown University’s business school, offers a case we might naturally expect to hear from a critic of democracy. The trouble, he says, is that the people simply do not know enough to govern, so that trusting them with immense power is a terrible mistake. An extensive social-science literature describes the political ignorance of the American population. He draws, in great detail, on the assessments of this ignorance to suggest that not only the reality but even the ideal of democracy is misguided.

Indeed, Brennan thinks politics is bad for us. The problem, in his telling, is not exactly that most people know next to nothing about politics—after all, most of us know next to nothing about pediatrics or architecture. The problem is that people engage in politics despite this patent incompetence. Politics therefore becomes applied ignorance, and diminishes us all. “I contend that for most of us, political liberty and participation are, on the whole, harmful,” he writes.

He doesn’t leave it there. “We no longer have to speculate, as [John Stuart] Mill did, about what politics does to us,” Against Democracy assures us. “Psychologists, sociologists, economists, and political scientists have spent more than sixty years studying how people think about, react to, and make decisions in politics.” And what they’ve found is that most of us are horribly ill-equipped for self-government.

* * *

The solution, therefore, is not to make people less ignorant but to leave politics to the experts. And these experts…might they be professors of economics and public policy? Brennan isn’t coy:

While I no doubt suffer from some degree of confirmation and self-serving bias, perhaps I justifiably believe that I—a named professor of strategy, economics, ethics, and public policy at an elite research university, with a Ph.D. from the top-ranked political philosophy program in the English-speaking world, and a strong record of peer-reviewed publications in top journals and academic presses—have superior political judgment on a great many political matters compared to many of my fellow citizens.

He means it. His solution to the problems that bedevil our democracy is to give the better educated more power. It’s an old idea, of course. Brennan’s version would use a variety of tests of knowledge, education, or intelligence as prerequisites for voting. Or else it would empower “epistocratic councils” (that is, bodies of experts deemed fit to rule thanks to their specialized knowledge) alongside our democratic institutions, which would set the agenda and rein in excesses. A libertarian in good standing, Brennan makes this case not in the name of an all-knowing state but to maximize individual freedom and government efficiency. His argument reflects the growing libertarian inclination to technocracy. It’s most evident among legal scholars reinventing originalism to endorse rule by “engaged” judges who vindicate our rights, but is also increasingly common among political scientists who want calm, knowledgeable experts (“vulcans,” Brennan calls them) to protect our freedom from the public.

For Brennan, sheer common sense dictates that we discard our sentimental attachment to democratic forms. Nor does Winston Churchill’s argument—bad as it is, democracy is the least bad option available—settle the question. “Overall, democratic governments tend to perform better than the alternatives we have tried,” Brennan writes. “But perhaps some of the systems we haven’t tried are even better.”

* * *

Brennan’s “realism” turns out to encompass self-consciously edgy experiments in giving the government powers neither derived from, nor constrained by, the consent of the governed. Ironically, however, his recommendations turn out to be less edgy than he implies. He thinks restrictions on voting based on education or intelligence might be ideal, but acknowledges that they would run afoul of powerful taboos. Brennan suggests instead various limits on the electorate imposed by empowering parallel non-democratic institutions to check our democratic ones. A body of economists could compel Congress at least to vote on entitlement reform, for example, or could overrule a state tax referendum. He describes these as novel and exciting despite the fact that, in different forms, such restraints are commonplace in our constitutional system. He does point out, in passing, that the Supreme Court is “a kind of epistocratic council.” But Against Democracy generally doesn’t acknowledge that many checks on democratic power already exist in the American system, or used to exist before the democratizing reforms of the past century. Furthermore, our constitutional refinements of democracy generally take democratic legitimacy seriously, a problem to which Brennan is all but indifferent.

Instead, Brennan justifies restraining the popular will solely in terms of utility. “Democracy’s value is purely instrumental,” he writes. “The only reason to favor democracy over any other political system is that it is more effective at producing just results, according to procedure-independent standards of justice.” And yet it turns out that this supposedly clear-eyed view of government’s purpose is actually naïve, while our constitutional system—anchored in self-evident truths and built to take account of the very human limitations Brennan thinks social scientists have only just discovered—is realistic, in every sense of the term. The limits of our knowledge, if not indeed the fallenness of man, may well argue against pure democracy, but they argue even more strongly against unchecked epistocracy.

The celebrated Belgian writer and scholar David Van Reybrouck sees this problem clearly. His book focuses at least as much on Europe as America, but Van Reybrouck insists his case applies just as powerfully to our circumstances. In contrast to Brennan, he argues that the democratic process empowers elites at the expense of the public, a result he regards as fulfilling rather than betraying republicanism. Elections—that is, the definitive institution of representative or republican democracy—have always been meant to elevate an elite, keeping democracy in check even while advancing it.

Against Elections quotes James Madison’s assertion in The Federalist that “the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society.” Van Reybrouck disapproves of this aim as elitist. “Democracy is not government by the best in our society,” he writes, “because such a thing is called aristocracy, elected or not.” In any case, most modern democracies fail to achieve anything resembling this outcome, and instead just empower an elite unworthy of its status.

The only solution is to recognize that democracy does not require elections. He acknowledges our “unshakable belief” that “democracy is inconceivable without elections,” but urges consideration of ancient Athenian democracy, where many crucial offices were assigned by lot. Using random selection from an eligible pool to fill at least some political positions—alongside elections, if not in place of them—would be much more democratic than popular voting. It would also allow for a greater diversity of views to be expressed in public policy and break the stranglehold of the elites. This kind of selection by “sortition” is how we choose juries, and Van Reybrouck points to instances around the modern democratic world where it has been used to help shape key decisions and encourage deliberation.

It is, of course, easy to poke holes in the case for sortition as a practical solution to the problems bedeviling the advanced democracies. And Van Reybrouck is never entirely clear about whether he sees it as a way to select legislators or even executives, as opposed to being the organizing principle for other institutions that share power with elected officials. Because his purpose is essentially diagnostic, he’s uninterested in implementation details (and at times also careless about the history of democracy, ancient and modern). Against Elections suggests that the problem with democracy is that it would have the people choose their betters rather than letting the people govern themselves.

But it is precisely in this diagnosis that the argument’s defect becomes most clear. Van Reybrouck’s case seems at first glance to be the opposite of Brennan’s: rather than expert rule, he argues for total democracy, on the premise that an average sampling of the public would govern better than our political class. Both Brennan and Van Reybrouck argue that the democratic public must be understood as incapable of rationality. In response, Brennan wants to empower a rational minority, while Van Reybrouck wants governance by a random selection of citizens, thereby maintaining democracy’s capacity to represent the public without pretending that people can effectively choose how they wish to be represented.

At least implicitly, Van Reybrouck is offering a form of democracy suited to an age of identity politics. In this sense, his diagnosis goes much deeper than Brennan’s, to the root of what many critics of democracy dislike about it. His proposed solution is not persuasive, but his short, pithy, readable, and well translated book performs a real service in articulating the apprehension.

* * *

Among other things, Against Elections helps to illuminate the worry underlying Christopher Achen and Larry Bartels’s Democracy for Realists, the most comprehensive and impressive product of the latest spate of academic criticism of democracy. Their book, neither short nor pithy, is admirably rigorous, with a starting point much like Brennan’s. “Our view is that conventional thinking about democracy has collapsed in the face of modern social-scientific research,” they assert. The “history of democratic thought—including much contemporary political science—is marked by an addiction to romantic theories.”

They review the social-science literature on voter apathy and ignorance, and assess evidence of voters’ inability to hold politicians accountable for their conduct in office. Individual voters do not think or act in ways that democratic theory imagines, they conclude, and cannot reasonably be expected to bear the responsibility our system assigns them.

But unlike Brennan, Achen and Bartels—political scientists at Princeton and Vanderbilt, respectively—ask just how and why voters do arrive at their choices. Democracy for Realists offers a “group theory of democracy” that explains political loyalties as functions of “social identities and group attachments,” rather than simply individual views. Our democratic processes, it argues, need to take account of this fact. This contention is surely right in many respects, but may owe too much to Achen and Bartels’s toolkit, and its limitations. Contemporary social-science methods are inherently disposed to explain political divisions in terms of measurable group identities, rather than harder-to-measure political ideas and priorities.

* * *

Achen and Bartels are admirably restrained in drawing implications from their central insight. They generally limit themselves to considering how it should change contemporary political science:

We conclude that group and partisan loyalties, not policy preferences or ideologies, are fundamental in democratic politics. Thus, a realistic theory of democracy must be built, not on the French Enlightenment, on British liberalism, or on American progressivism, with their devotion to human rationality and monadic individualism, but instead on the insights of the critics of these traditions, who recognized that human life is group life.

Incorporating this critique would indeed be an advance for modern social science. But Achen and Bartels too readily assume that rejecting hyper-individualism entails denying political preferences’ philosophical roots. Doing so awards an unmerited victory to the view that a more communitarian political theory would describe a less ideological politics. The theory they desire needs a more robust understanding of political ideas.

And such a theory is hardly unimaginable. Several times, in fact, Achen and Bartels come close to recognizing that one already exists. James Madison’s account in Federalist No. 10 of the roots of political differences, they note, “prefigures most of the key psychological ideas of the group theory of politics.” Later, they remark in passing that “Madison also anticipated the experimental finding of 20th-century psychologists that group attachments are easily generated and profoundly felt.”

They might have said much more along those lines. The Madisonian constitutional system is grounded in a sophisticated understanding of how a free society’s citizens form and hold opinions. Alexander Hamilton offers a subtle teaching in The Federalist about the challenge of persuading people who bring thoroughly intertwined interests, attachments, and ideas to the political process. This reality, Hamilton suggests, should lead us to reject both cynicism and naïveté, by considering an argument’s merits and the motives that might drive it. And it led the framers to array America’s governing institutions with overlapping electorates and intermixed authorities, mitigating the practical consequences of our cognitive limitations and assorted biases.

* * *

Seen in this light, Achen and Bartels’s argument turns out to be a critique not of American constitutional democracy but of what some progressive reforms, undertaken with democratic intent, have done to it. Though they may not realize or intend it, theirs is a case for constitutional recovery. And it raises the question of whether the broader genre of social-scientific skepticism about republican institutions might not actually point toward much the same solution.

What if a naïve faith in voters’ rationality is not the source of our system’s difficulties? What if the problem is that the public wants to tell its leaders something they don’t want to hear? What if the literature of anti-democratic political science, like so much of our elite conversation about politics, is just a way to tell the public to shut up? What if, as a result, the leaders who secure a hearing for public frustrations manage to do so by working around or undermining our institutions, rather than by harnessing them? What if that willful elite ignorance is why our institutions face a crisis of legitimacy, leading to elections that force us to choose between bland technocrats and reckless brutes?

In other words, what if our constitution-bound democratic republicanism is not the problem but the solution—not a romantic delusion but the epitome of realism? If that were so, what then would this moment demand, both of citizens and of those who would be practitioners of a political science that deserves the name?

Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center.

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