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Why Write a Book About a Seemingly Intractable Problem like Political Ignorance?

By on January 3, 2014 10:45 am in Democracy, Democracy and Political Ignorance, Political Ignorance

Some VC commenters and readers of my recent book and other work on political ignorance, wonder whether there is any point to writing about this subject if my argument is correct. If most voters are ignorant about politics because such ignorance is rational, and that problem is unlikely to be overcome by information shortcuts, education, or media reform, won’t they simply ignore my argument that we can help alleviate the problem by limiting and decentralizing government? If so, limitation and decentralization might prove to be just as unfeasible as more traditional strategies for alleviating political ignorance.

I can’t deny that this is a genuine dilemma. One possible answer is that there is value to understanding a problem better even if we can’t immediately come up with a workable solution. Other writers might be able to build on my analysis and use it to help develop more effective proposals of their own. The issue of the rationale for writing Democracy and Political Ignorance came up often enough in various presentations I gave about the manuscript before it was published, that I decided to provide a more thorough answer in the book itself. Here’s an excerpt from what I wrote (footnotes omitted):

Given the self-perpetuating nature of the problem of political ignorance, readers might wonder whether there is much purpose to a book such as this one. Even if the case for limiting and decentralizing government is correct, rationally ignorant voters could easily ignore it, just as they do a great deal of other relevant information.

The challenge is indeed a daunting one. Nonetheless, there is at least some reason for cautious optimism. Past experience in several countries suggests that substantial liberalization and decentralization can be achieved in modern democracies. In the 1980s and 1990s, for example, New Zealand greatly

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My New Article on “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy”

By on December 20, 2013 11:15 am in Constitutional Theory, Democracy, Originalism, Representation-Reinforcement

My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the

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University of Chicago Law Review Symposium on the Work of Judge Robert Bork

By on December 18, 2013 11:10 am in Conservatism, Constitutional Theory, Democracy, Originalism

The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” is available here. Here is a summary adapted from the Introduction:

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and

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Israel, Palestine, and Democracy

By on December 17, 2013 12:37 pm in Democracy, International Law, Israel

At Commentary, I have a new piece on the common argument that Israel must make a deal with the Palestinians to save itself as a democracy. Here is an excerpt:

The “democracy” argument has become the central justification of the diplomatic process, incessantly invoked by Secretary of State John Kerry and Israeli peace envoy Tzipi Livni. What makes the democracy argument effective is that it plays on deep-seated Jewish sentiments. Israelis are a fundamentally liberal, democratic people who desperately do not wish to be put in the role of overlords.

The problem with the democracy argument is that it is entirely disconnected from reality. Israel does not rule the Palestinians. The status quo in no way impeaches Israel’s democratic identity.

It is true that the Palestinians are not represented in the Knesset. But Israeli residents of Judea and Samaria are similarly not represented in the Palestinian Legislative Council. Simply put, both the Palestinians and Israelis vote for the legislature that regulates them. That is democracy (though obviously it does not play out as well in the Palestinian political system).

The Palestinians have developed an independent, self-regulating government that controls their lives as well as their foreign policy. Indeed, they have accumulated all the trappings of independence and have recently been recognized as an independent state by the United Nations. They have diplomatic relations with almost as many nations as Israel does. They have their own security forces, central bank, top-level Internet domain name, and a foreign policy entirely uncontrolled by Israel.

The Palestinians govern themselves. To anticipate the inevitable comparison, this is not an Israeli-puppet “Bantustan.” From their educational curriculum to their television content to their terrorist pensions, they implement their own policies by their own lights without any subservience to Israel. They pass their own legislation, such as the

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“Democracy” and “Republic” Are Not Mutually Exclusive Terms

By on October 28, 2013 5:56 pm in Democracy, Democracy and Political Ignorance, Political Ignorance

If you write about democratic theory, as I do, you will periodically get complaints that it is inaccurate to refer to the United States as a “democracy” because it is actually a “republic.” For example, several Facebook commenters and others have suggested that I should have titled my book Democracy and Political Ignorance (which focuses primarily on political ignorance in the United States) “The Republic and Political Ignorance” or something to that effect.

In the 18th century, “democracy” and “republic” were relatively distinct terms, with the former referring mainly to what we would today call “direct democracy,” of the sort practiced by the ancient Athenians. But today, the word “democracy” is routinely used to describe any government where all or most political leaders are chosen by popular election. Moreover, governments are regularly described as “democratic” even if they have a variety of constraints on the powers of elected officials, such as federalism, separation of powers, judicial review, and so on. By this definition, the United States surely qualifies as a democracy, even if it can also be called a “republic.” The two terms have become largely interchangeable, with the exception of the fact that a democracy that has a figurehead constitutional monarch as head of state will usually not be called a republic.

This is not a recent innovation. The terms were often used interchangeably, including in reference to the United States, by the mid-19th century. For example, Abraham Lincoln described the United States as “a constitutional republic, or a democracy—a government of the people, by the same people” in this 1861 message to Congress.

People who insist on a sharp distinction between “republic” and “democracy” may simply dislike modern usage and prefer a return to that of two hundred years ago. But if so, they should not claim […]

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The Superiority of Democracy Over Dictatorship is No Reason to Ignore the Problem of Political Ignorance

By on October 19, 2013 11:20 am in Democracy, Democracy and Political Ignorance, Political Ignorance

In this recent American Scene post, Pascal-Emanuel Gobry argues that I and other libertarians who focus on the problem of voter ignorance as a major flaw of modern democracy are wrong to do so, because democracy is still superior to other forms of government:

Libertarians who live in America look around them and see cops shooting unarmed pedestrians, people getting arrested for growing pot or selling (delicious) raw milk, taxes and government spending and debt going ever higher. In short, disaster. And all of these things are bad and it is very good that we have libertarians railing against them.

But where it leads them astray is that they are often taken to make the following sorta-syllogism: “America has terrible policies. Most of the people around me are either for them or just not up in arms about them as I am. The combination of most people being dumb and democracy produces terrible policies….”

The only problem with that is that if you take a little bit of a broader perspective (both geographically and historically) you realize that democracies are actually really awesome and that they kick the sh** out of all other forms of government. I mean, it’s not even close! On every front: protecting civil liberties, developing markets, etc.

Almost all the countries that have the best policies are democracies. It’s really quite lopsided.

This would be a powerful critique of libertarianism if libertarians were using the problem of political ignorance to argue for the replacement of democracy by dictatorship (the prevalent form of government in most of the nondemocratic nations in the world). But, in reality we are advocating for a combination of democracy with greater decentralization and much tighter limits on government power. Even if present-day democracy is superior to dictatorship, democracy with greater decentralization […]

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Europe’s Proposed Circumcision Ban: How Far Back We’ve Gone While Making Progress

By on October 4, 2013 10:12 am in Anti-Semitism, Circumcision Bans, Democracy, Jewish Culture, Religion, Religion and the Law, Religious Freedom, Uncategorized

The Council of Europe in Strasbourg has recommended nations consider banning child circumcision. Jewish groups, and the State of Israel, are predictably outraged by the recommendation, which if adopted would make traditional (and not just religious) Jewish life impossible on the Continent. Thus the law has been denounced as anti-Semitic.

While I have recently criticized European hypocrisy in matters related to Jews, here I find little to object to as a formal matter. European nations are well within their rights to ban such practices, despite the significant disruption it creates for religious minorities.

If democratically adopted, such bans would mean that a significant segment of European society thinks, as the Council said, that circumcision represents a barbaric mutilation of a child. That is a legitimate position of conscience; indeed, it is a quasi-religious belief itself, in that it is based on deeply held moral views about essentially unverifiable matters. As a believer in the covenant of Abraham I do not share these views, but they are far from absurd if one does not accept the validity of the covenant.

A majority has a legitimate right and interest to conduct society according to its moral views when articulated in laws that are generally and equally applied. Government is in part an instrument for the expression and transmission of values, and all legislation takes explicit or implicit moral positions. If the values that stand behind generally applicable legislation conflict with the views of religious or ethnic minorities, the majority should not be neutered or have its values annulled to protect the sensibilities of minorities who hold different views.

There are some who think the law is discriminatory, aimed at the religious groups who practice circumcision. It seems to me that circumcision, in a non-religious context, is common […]

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“Terrorism,” “Hostage-Taking,” and the Government Shutdown

By on September 30, 2013 6:14 pm in Congress, Democracy

Some Obama administration supporters claim that Republicans who refuse to pass a bill funding the federal government are acting like “terrorists” or “hostage takers.” To some extent, this is just your typical exaggerated political rhetoric, similar to that of Republicans who absurdly claim that Obama is a “socialist,” for example. But it also presents a fundamentally misleading understanding of the situation.

Terrorists and hostage-takers are evil because they threaten lives and property that do not belong to them. “Your money or your life” is a terroristic threat, because the person making the threat has no right to dispose of either your money or your life. But there isn’t any terrorism or hostage-taking if you say you won’t give me any of your money unless I do something you want me to do.

In the case of the government shutdown, the GOP-controlled House of Representatives has no constitutional or other obligation to pass a funding bill that includes funding for Obamacare or any other particular government program. Part of the reason why the Constitution gives Congress the power of the purse is so they can decide which government programs are worthy of funding, and which are not. It is also worth noting that the Republicans are not the only side in this dispute who are willing to shut down the government if they don’t get what they want on health care policy. President Obama and the Democratic-controlled Senate could just as easily avoid a shutdown by accepting the House bill. In its latest version, it doesn’t even defund Obamacare completely, but merely delays implementation by a year and repeals the medical device tax, which is currently part of the law. This is not to say that Obama and the Senate Democrats are acting as “terrorists” or “hostage-takers” either. The Senate […]

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Justice Sandra Day O’Connor on Political Ignorance

By on September 6, 2013 8:09 pm in Democracy, Democracy and Political Ignorance, Education, Political Ignorance, Voting With Your Feet

Retired Supreme Court Justice Sandra Day O’Connor recently gave a speech lamenting widespread political ignorance in the United States:

Two-thirds of Americans cannot name a single Supreme Court justice, former Justice Sandra Day O’Connor told the crowd that packed into a Boise State ballroom to hear her Thursday.

About one-third can name the three branches of government. Fewer than one-fifth of high school seniors can explain how citizen participation benefits democracy.

“Less than one-third of eighth-graders can identify the historical purpose of the Declaration of Independence, and it’s right there in the name,” she said.

O’Connor touted civics education during her keynote address at the “Transforming America: Women and Leadership in the 21st Century” conference, put on by the Andrus Center for Public Policy. She also described being a female lawyer in the 1950s, and challenged her listeners to help the next generation of leaders reach their goals….

“The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” O’Connor said.

That ignorance starts in the earliest years of a child’s schooling, she said, but often continues all the way through college and graduate school.

O’Connor argued that learning about citizenship is just as important for American children as learning multiplication or how to write their names.

“We have to ensure that our citizens are well informed and prepared to face tough challenges,” she said. “If there is a single child not learning about civics or not being exposed to what they must do as citizens, then all our lives are poorer for that.”

Having just written an entire book on the dangers of political ignorance, I completely agree with Justice O’Connor that this is an important problem. She is performing a useful public service by […]

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A Knowledgeable but Selfish Electorate May be Better than a Well-Meaning but Ignorant One

By on August 8, 2013 2:50 pm in Democracy, Democracy and Political Ignorance, Elections, Political Ignorance, Public Opinion

In my last post, I discussed economist Dwight R. Lee’s article about why most of the electorate does not decide who to vote for on the basis of narrow self-interest. Unfortunately, the very same incentive structure that leads most voters to base their decisions on the public interest also leads most of them to be ignorant. In this post, I would like to suggest that a narrowly self-interested electorate might actually be better than an altruistic one, so long as the former is much more knowledgeable about policy than the latter. I have a more detailed discussion of this scenario in Chapter 2 of my forthcoming book on political ignorance.

Imagine a political system (call it, “democracy”) where public opinion has a lot of influence over public policy. Politicians know that if they don’t do what the majority wants, their chances of winning election and reelection will be significantly reduced. Imagine, also, that the electorate is highly knowledgeable, but also extremely selfish. They understand the effects of different policies very well, but always prefer whatever policy maximizes their personal material wealth, and perhaps that of their families. Many people would intuitively assume that this is a kind of nightmare scenario. It would lead to 51% voting to enslave or at least severely oppress, the other 49% for the benefit of the majority.

Maybe it would. But a little reflection would soon lead to knowledgeable majority to recognize that slavery and severe oppression of the minority are not actually in their interest. Basic economics, plus lots of empirical evidence, suggest that slaves and forced laborers are usually less productive than free workers who get to keep a substantial proportion of what they earn. Thus, the 51% would do better to let the 49% live freely and earn a good […]

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Political Ignorance in Britain

By on July 10, 2013 11:10 am in Democracy, Democracy and Political Ignorance, Political Ignorance, Public Opinion, Voting With Your Feet

Sam Bowman of the Adam Smith Institute has an interesting post analyzing recent survey data on widespread political ignorance in Britain [HT: Nigel Ashford]:

The public is ignorant about politics and lacks even the basic facts that it would need to make sound judgments about political issues. A new poll by Ipsos-MORI shows just how deep this ignorance is. Among other things, the poll found that:

* 29% of people think we spend more on JSA[ed. note: the JSA is Britain’s unemployment benefit program] than pensions, when in fact we spend 15 times more on pensions (£4.9bn vs £74.2bn)
* 26% of people think foreign aid is one of the top 2-3 items government spends most money on, when it actually made up 1.1% of expenditure (£7.9bn) in the 2011/12 financial year. More people select this as a top item of expenditure than pensions (which cost nearly ten times as much, £74bn) and education in the UK (£51.5bn)
* the public think that 31% of the population are immigrants, when the official figures are 13%. we greatly overestimate the proportion of the population who are Muslims: on average we say 24%, compared with 5% in England and Wales.
* people are most likely to think that capping benefits at £26,000 per household will save most money from a list provided (33% pick this option), over twice the level that select raising the pension age to 66 for both men and women or stopping child benefit when someone in the household earns £50k+. In fact, capping household benefits is estimated to save £290m, compared with £5bn for raising the pension age and £1.7bn for stopping child benefit for wealthier households.

These are not just little mistakes, they’re absolute howlers.

This ignorance is perfectly rational and understandable. The problem is that these

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More on Egypt, Constitutionalism, and Democracy

By on July 8, 2013 1:37 pm in Democracy, Public Opinion

At the Liberty and Law blog, Michael Rappaport has posted a thoughtful response to my recent post arguing that liberal democrats are sometimes justified in supporting restrictions on democracy in cases where the majority public opinion is highly illiberal. I cited survey data and other evidence suggesting that Egypt is probably such a case. Michael endorses my main point, but suggests various qualifications:

I agree with Ilya, but there is more going on here. Democracy is a vague concept. A single election can be thought of as democracy, but few thoughtful people would defend it as such. Democracy, even if it is not necessarily liberal democracy, still requires a system whereby the people’s will is regularly consulted and done in a fair process. Morsi instituted decrees that purported to be unreviewable by the courts. Such absolute power is not the way to have democracy….

But there is another aspect of both democracy and consensual government, and that is compromise. If a majority of the people or the legislature favors a policy, that does not necessarily mean it should be instituted, if a large minority strongly disapproves of it. This is a tricky issue, but consensual government involves compromises and it appears Morsi was having none of it.

Finally, there is the important issue of enacting a constitution. In my view, a constitution should be enacted through an inclusive, supermajoritarian process. It should reflect the views of a large percentage of the country. The U.S. Constitution did this, at least as to those who had the right to vote. Much of the problem in Egypt appears to involve this matter. A largely Islamist assembly was elected in a single election, which then appointed a largely Islamist constitutional assembly, which then sought to entrench its power.

I largely agree with Michael’s points […]

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Upcoming Huffington Post Live Discussion on Egypt, Constitutionalism, and Democracy

By on July 8, 2013 10:45 am in Democracy, Political Ignorance

This Monday at 4:30 PM (eastern time), I will be participating in a Huffington Post Live video discussion on democracy, constitutionalism, and their role in recent events in Egypt. I don’t yet know the exact parameters of the discussion or who the other participants will be (the organizers indicated that this article helped inspire them to address this topic). But I suspect I was asked to take part because of my recent post on how the situation in Egypt exemplifies tradeoffs between democracy and other liberal values. Perhaps also because of my forthcoming book Democracy and Political Ignorance. Interested readers can watch the discussion live at the HuffPost website.

UPDATE: A video of the discussion is available here. The other participants are Prof. Stanley Katz of Princeton, Zaid Al-Ali – an expert on constitutional design in the Arab world, and Daniel Landsberg-Rodriguez. […]

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Restricting Democracy in Order to Protect Other Liberal Values

By on July 5, 2013 11:30 am in Democracy, Political Ignorance, Public Opinion

Some argue that it would be hypocritical for the United States or other Western nations to support the recent military coup against radical Islamist Egyptian President Mohammed Morsi. After all, we supposedly champion democracy, and Morsi was democratically elected. Whether the US should endorse the post-coup government, oppose it, or take a wait-and-see attitude is a tough question. But it isn’t inherently hypocritical for liberal democrats to – in some cases – support the overthrow of an elected government.

That’s because democracy is not the only important liberal value, and not always the most important one. At the very least, the liberal tradition, broadly defined, also values individual freedom, equality for women, toleration of religious and ethnic minorities, economic progress, and the prevention of mass murder, slavery, and genocide. Most of the time, democracy promotes these other liberal values better than the available alternative regimes. But not always. Democracy and liberal values conflict in cases where public opinion is highly illiberal and cases where the democratic process brings to power parties that intend to shut down future political competition. Both problems are relevant to the present situation in Egypt and at least some other nations.

I. Illiberal Majority Opinion.

Democracy is a political system where the government is chosen by the majority of voters. But what if that majority favors oppressive, illiberal policies? What if they want to persecute religious minorities, force women to be second-class citizens, establish systems of forced labor, and so on? In that scenario, democracy can easily end up promoting repression.

This is far from a purely theoretical problem. Majority Egyptian opinion is in fact highly illiberal, with 84 percent supporting the death penalty for any Muslim who converts to another religion, 54 percent favoring legally mandated sex segregation in the workplace, and 58 percent […]

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Updated Reflections on the Revolution in Egypt

By on July 3, 2013 11:09 pm in Democracy, Public Opinion

When the Egypt’s Mubarak dictatorship began to collapse two years ago, I wrote a post entitled “Reflections on the Potential Revolution in Egypt,” shamelessly copying Edmund Burke. I suggested that the rebellion could easily end up establishing a regime even worse than Mubarak’s was. Unfortunately, the new radical Islamist government of Mohammed Morsi did indeed end up surpassing its predecessor in repressiveness. After a series of protests by opposition movements that were met with additional repression, Morsy has apparently been overthrown in a military coup today.

It is hard to say whether the next government of Egypt will be better than Mubarak or Morsi. If it is dominated by the military, it could turn out to be an updated version of the Mubarak era. Some have been much more negative about Morsi’s overthrow than Mubarak’s, because the former was democratically elected. In my view, that is an overly simplistic position. Democracy is just one one of several attributes of a just government, and not necessarily the most important. As I discussed in this February post on the Egyptian protests, rule by military kleptocrats may be a lesser evil compared to rule by quasi-totalitarian radical Islamists who have no real intention of respecting the democratic process in the long run:

If Morsi continues to persecute his political opponents and establishes an Islamist dictatorship, his government might not be “up for re-election in a few years,” at least not a free election in which opposition parties are allowed to compete on equal terms. If Morsi is not overthrown now or at least forced to accept tight constraints on his authority, Egypt’s “democratic transition” could easily turn into a case of “one man, one vote, one time.”

Even if Morsi retains a relatively free democratic process, the illiberal nature of

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