Prohibitions: Constitutionalism and Democracy

The general institutional framework for policy-making is constitutional democracy.

Let’s start with constitutionalism. Constitutions are entrenched rules, which are more difficult to change than ordinary legislation. They can provide general structure and stability. A constitution establishes the machinery of government, which has three principal dimensions: (a) separate branches or “powers” (executive, legislative, and judicial), (b) checks and balances among the branches (presidential veto, impeachment, judicial review, and so on), and (c) basic political jurisdictions (e.g., Federal Government and States). Polities with plural jurisdictions can experiment at the frontiers of liberty; for example, a number of U.S. States have legalized cannabis since 2012. Moreover, when jurisdictions have different policies about prohibitions, citizens may sort themselves, by internal migration, according to their preferences about frontiers of liberty.

A constitution establishes also a sphere of individual rights. Rights crucial to liberty are (a) freedoms from interference and (b) procedural rights. Enforcement of individual rights requires public resources. Think, for example, of “the right to a speedy and public trial, by an impartial jury” (U.S. Bill of Rights, Amendment VI). However, rights, unlike entitlements , aren’t claims on redistribution. Many people speak of entitlements as rights; for example, “a right to health care.” In my judgment, conflation of rights and entitlements muddies the waters.

Note that “States’ rights” are really a matter of plural, distinct jurisdictions in the machinery of government. Sometimes, States use their jurisdiction and machinery of government to restrict individual rights and liberty. Think, for example, of slavery in the antebellum south. Here, too, conflation of terms—(individual) rights and (State) jurisdiction—muddies the waters.

I find it useful to distinguish two normative conceptions of the nature and scope of individual rights. One conception is instrumental and narrow, the other substantive and broad. The instrumental, narrow one defines rights as freedoms necessary to achieve full and fair democracy in collective decision- making. Think of enumerated rights in the Bill of Rights—freedoms of worship, speech, press, assembly, due process, and so on—and also abolition (Amendment XIII) and equal protection (Amendment XIV). John Hart Ely articulates the instrumental, narrow conception of rights. By contrast, the substantive, broad conception of individual rights establishes a presumption of liberty across the board. Michael Huemer articulates the substantive, broad conception of rights, which Bryan Caplan calls commonsense libertarianism. Think of Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To override a presumption of liberty, then, proponents of a prohibition must make a clear and convincing case (or even a case beyond a reasonable doubt?), and must tailor any prohibition as narrowly as possible.

Constitutions can entrench not only individual rights, but also prohibitions; for example, prohibition of “intoxicating liquors” (Amendment XVIII, repealed by Amendment XXI). Moreover, the U.S. required prohibition of polygamy by Utah, and by other western territories, as a condition of admission to Statehood.

Let’s turn from constitutionalism to democracy. There are two principles to modern democracy: (a) political equality and (b) majority rule. Until recently, political equality was almost everywhere contested. Jon Elster offers an hypothesis why the principle, “one person, one vote,” has come to prevail:

“There has never been a lack of groups claiming a privileged status. The rich, landed property owners, the old, the educated, the intelligent, the nobility, members of the Aryan race or of other ethnic groups, believers of some given religion, and the male half of society have all claimed to be inherently superior to their complements. […] In the presence of many different groups who compete on the basis of their innate quality , only quantity can emerge as a peaceful focal-point solution.”—Jon Elster, “Majority Rule and Individual Rights,” in Stephen Shute, ed., On Human Rights (Basic Books, 1994) 175-216, at pp. 177-78.

At the dawn of modern democracy (1789), Jeremy Bentham identified an intrinsic incentive problem:

“The greater number of voters the less the weight and the value of each vote, the less its price in the eyes of the voter, and the less of an incentive he has in assuring that it conforms to the true end and even in casting it at all.”—Jeremy Bentham, “Considérations d’un Anglois sur la composition des États-Généraux y compris réponses aux questions proposées aux notables” [1789], cited after Jon Elster, Explaining Social Behavior , 2nd edition (Cambridge U. Press, 2015), p. 409.

Now, Jason Brennan raises questions about political equality: “Democracy is the official religion of the West. Now is as good a time as any to question the faith.” Brennan sketches the quality of voter behavior in large electorates, given this incentive problem:

“As an analogy, suppose a jury were deciding a capital murder case. But suppose instead of carefully considering the evidence, the jury found the defendant guilty out of caprice or malice. Suppose a third of jurors paid no attention to the evidence, and just decided, by coin flip, to call the defendant guilty. Suppose another third decided to find the defendant guilty because they dislike his skin color. Suppose the final third paid attention to the evidence, but found the defendant guilty not because the evidence suggested he was, but because they subscribed to a bizarre conspiracy theory.

If we knew a jury behaved that way, we’d demand a retrial. The defendant’s property, welfare, liberty and possibly life are at stake. The jury owes the defendant and the rest of us to take proper care in making its decision. It should decide competently and in good faith.

This line of reasoning applies even more strongly to the electorate as a whole.”

Why, then, do we nonetheless value democracy? Brennan explains and counters:

“We imbue people with the equal right to vote in order to express that they are full and equal members of the national club. […] This widely held view is odd. Democracy is not a poem or a painting. Democracy is a political system. It is a method for deciding how and when an institution claiming a monopoly on legitimate violence will flex its muscles. Government is supposed to protect the peace, provide public goods and advance justice. It’s not in the first instance an institution intended to boost, maintain or regulate our self- esteem.”

Compare Winston Churchill on democracy:

“The foundation of all democracy is that the people have the right to vote. […] At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.”—Winston Churchill, House of Commons, October 31, 1944

Robert Sugden—perhaps in the spirit of Churchill?—argues that political equality is a matter of legitimacy (not exactly the same as self-esteem); and that deference can salvage the quality of voting in democracy:

“[…] no democratic decision-making procedure prevents citizens from deferring to the judgments of those whom they believe to be more competent than themselves. […] My point is that if one group of people perceive another group as more competent than themselves, a democratic system allows the one to defer to the other. […] political institutions must be justified to everyone in terms each person can accept.” —Robert Sugden, “Justified to Whom?,” in D. Copp, J. Hampton, and J. Roemer, eds., The Idea of Democracy (Cambridge U. Press, 1993) 149-54, at pp. 153-54.

Brennan, and also Caplan, take a different tack than Sugden. They advocate reforms of democracy in the direction of epistocracy (rule by those who are knowledgeable); reforms such as restricted suffrage (competence qualification), plural voting, epistocratic veto, and weighted voting.

Caplan adduces an example:

“one kind of expert—judges— already has some power to overturn popular but misguided legislation. Perhaps other kinds of experts should have similar power. If we let the Supreme Court overturn legislation for being ‘unconstitutional,’ why not let the Council of Economic Advisors overturn legislation for being ‘uneconomical’?”—Bryan Caplan, “Majorities against Utility” (p. 209)

But Caplan also notes a catch-22:

“most of these proposed reforms suffer from a catch-22: Since the majority is already in charge, change requires its consent. To limit the power of the majority, you have to convince the majority that it should have less power.” (p.210)

Brennan proposes to have it both ways:

“One somewhat paradoxical-sounding, but surprisingly reasonable, idea is that we could use democratic procedures to choose a public definition of political competence, which we in turn use to select epistocratic voters. […] the question ‘What counts as political competence?’ is a much easier question than, say, ‘Should we have free trade or protectionism?’ The latter question requires social scientific knowledge most voters lack, but the former question does not.”

Is Brennan’s idea essentially a roundabout (formal, institutional) version of Sugden’s simpler idea of the everyday practice of deference?

I’ve danced around the second key principle of democracy, majority rule. Recall Brennan’s mention of “legitimate violence.” Collective decisions, short of unanimity, operate in the shadow of coercion.

It’s commonplace to downplay the element of coercion in majority rule. We sometimes say, philosophically, “we get the government we deserve.” This saying may be understood in two different ways. Ordinarily, it’s an indictment of voter competence and motivations—a layperson’s version of Bentham’s analysis of endogenous voter laziness. Alternatively, it may be taken as a credo of voter self-paternalism via democracy. The thought is that citizens launder their preferences in the voting booth—Dr. Jekyll, when he votes, binds Mr. Hyde. According to this understanding, prohibitions are self-paternalism rather than coercion. Caplan has a ready retort to this rosy interpretation of majority rule: No, we get the government they (i.e., the majority) deserve. The majority imposes its uninformed preferences or its self-paternalism also on the minority. More straightforwardly, and most likely, the majority simply wants to bind the minority. The political psychology is paternalism, or even authoritarianism, towards others rather than self-paternalism. Thus we have paternalistic or authoritarian tyranny of the majority : We (the minority) get the government they (the majority) think we deserve.

Preference intensity is another thorn for democracy. Often, a minority, who have a great stake in a liberty, find themselves ruled by a majority, who have a lesser stake in the attendant legislative prohibition. Think of military conscripts, African Americans under Jim Crow, and gays. Eric Posner and Glen Weyl have invented an ingenious potential remedy to democracy’s indifference to preference intensity, quadratic voting. Where citizens vote on a range of distinct issues, quadratic voting incorporates individual intensity of preference, mimics logrolling, and preserves political equality (an equal budget of votes for each citizen). Quadratic voting warrants experimentation in the wild.

Let’s return to Bentham’s diagnosis of inadequate incentives for voters to get well-informed. Robin Hanson proposes an ingenious remedy, prediction markets. If bettors wager (i.e., have skin in the game) in thick markets about facts and mechanisms relevant to policy-making, then the odds that emerge can inform citizens efficiently. Voter deference to apt markets for purposes of belief-formation can be more reliable than deference to experts, and surely superior to deference to pundits and grandstanders. Citizens could vote on values, after forming beliefs about processes of change by following prediction markets. For example, there might be integrated prediction markets about (a) prevalence of drug use at a specific future date, and (b) enactment of a specific policy of drug legalization in the current legislative session.

Demarcation of individual rights from majority rule, or of constitutionalism from democracy, can shift in history in a given polity, and can vary among countries. I mentioned that the locus of policy in the U.S. about intoxicating liquors shifted from democracy to constitutionalism (1919), and then back again (1933). Abortion policy in the U.S. traditionally fell to States’ jurisdiction (decentralized legislation) until the Supreme Court (Roe v Wade, 1973) declared abortion an individual right protected by the Constitution. By contrast, in Italy, at about the same time (1978), a standing national legislative prohibition of abortion was repealed by direct democracy (majority rule in a national referendum).

The next blogpost will be about standard rationales for prohibitions. If you would like background readings, I recommend Gerald Dworkin, “Paternalism,” and Alvin Roth, “Repugnance as a Constraint on Markets.”

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John Alcorn is Principal Lecturer in Formal Organizations, Shelby Cullom Davis Endowment, Trinity College, Connecticut.

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