The Conservative Sensibility Read online

  There are two reasons not to be greatly concerned about the counter-majoritarian difficulty. First, much of what majoritarian institutions do is done not to satisfy a demand or desire of a majority; the majority is completely oblivious of most of what today’s government does. Most voters most of the time are ignorant—rationally so—of the government’s processes and activities. The second reason to not lose sleep over the counter-majoritarian difficulty is that majority rule is not the point of the American project.

  Sentimentalists about democracy generally insist that its defects result because voters’ views are sensible but ignored. It is, however, at least as often the case that democracy produces unfortunate results because voters’ views are foolish but honored. Often the problem is not that government is unresponsive but that it is too responsive. The political class is prudently reticent about the subject of the electorate’s competence at rendering judgments, and democracies generate an ethos of contentment about their premises, so there rarely is heard a discouraging word about voters’ political knowledge. It was, therefore, bracing, if naughty, for Winston Churchill to say—if he actually did so; sources differ—that “the best argument against democracy is a five-minute conversation with the average voter.” Nevertheless, many voters’ lack of information about politics and government is undeniable. And it raises awkward questions about concepts central to democratic theory, including consent, representation, public opinion, electoral mandates, and—this is perhaps the fundamental function of modern democracy—the ability of voters to hold elected officials accountable.

  Ilya Somin of the libertarian Cato Institute argues that, in general, an individual’s ignorance of public affairs is essentially rational because the likelihood of his or her vote being decisive in an election is vanishingly small. But if choosing to remain ignorant—to not invest the time and effort necessary to become knowledgeable—is rational individual behavior, this can and often does have destructive collective outcomes. The quantity of political ignorance matters because voting is not merely an act of individual choice. It also is the exercise of power over others. And “the reality that most voters are often ignorant of even very basic political information is one of the better-established findings of social science.”83

  In the Cold War year 1964, two years after the Cuban missile crisis, only 38 percent of Americans knew the Soviet Union was not a member of NATO. In 2003, about 70 percent were unaware of enactment of the prescription drug entitlement, then the largest welfare state expansion since Medicare arrived in 1965. In a 2006 Zogby poll, only 42 percent could name the three branches of the federal government. Such voters cannot hold officials responsible because they cannot know what the government is doing, or which parts of government are doing what. So political ignorance “is an obstacle to its own alleviation.” Given that more than 20 percent of Americans (and Europeans) think the sun revolves around the Earth, it is unsurprising that only 30 percent can name their two senators, and even at the peak of a campaign a majority cannot name any congressional candidate in their district. According to a 2002 Columbia University study, 35 percent believed that Karl Marx’s “From each according to his ability, to each according to his need” is in the US Constitution.84

  Many people acquire political knowledge for the reason many people acquire sports knowledge—because it interests and entertains them, not because it will alter the outcome of any contest. And with “confirmation bias,” many people seek political information in order to reinforce their pre-existing views. Committed partisans are generally the most knowledgeable voters, independents the least. And the more political knowledge people have, the more apt they are to discuss politics with people who agree with them. A normal citizen learns about the politics of the day in the same way that a child first learns a language—by a blend of observation and osmosis of the conversation of society going on around the child. The average American expends more time becoming informed about choosing a car or television than choosing a candidate. But, then, the consequences of the former choices are immediate and discernible; the consequences of choosing a candidate often are neither. “The single hardest thing for a practicing politician to understand,” said an experienced and successful politician, Britain’s Tony Blair, “is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh.”85

  When this author’s children were young in the mid-1980s and they would ask if they had my permission to do this or that, if my answer was “yes” I would say: “Go ahead, it’s a free country—Mondale lost.” I was being droll and no doubt unintelligible. The point I was trying and almost certainly failing to make was this: Ours is a constitutional republic, in which the basic elements of happiness and civic safety are not put at risk in routine elections. If former Vice President Walter Mondale had defeated Ronald Reagan in 1984, America would have remained as it was, a free country. The Will children were innocent of political knowledge. Their excuse was that they were children. Adults need a better excuse. Trying to ameliorate the problem of political ignorance by increasing voter knowledge is an unpromising undertaking. Demand for information, not the supply of it, is the major constraint on political knowledge. The arrival of broadcast television in the 1950s and 1960s did increase political knowledge among the segments of the population traditionally least informed. There is, however, evidence that cable television and the Internet may have produced, among those segments, a net subtraction from political knowledge by providing a rich menu of alternative distractions.86

  New information technologies have served primarily to increase the knowledge of the already well-informed. This is, on balance, good, but it also increases the ability of some to engage in “rent-seeking” from the regulatory state, manipulating its power to transfer wealth to themselves. So political knowledge, which often is a function of social and educational inequality, exacerbates inequality. And if political knowledge is measured relative to government’s expanding scope, ignorance is increasing rapidly: There is so much more about which to be uninformed. A better ameliorative strategy would be to reduce the risks of ignorance by reducing government’s consequences—its size, complexity, and intrusiveness. Somin correctly notes that in the nineteenth century, voters’ information burdens were much lighter because important federal issues—expansion of slavery, disposition of public lands, tariffs, banking, infrastructure investments—were much fewer.

  Today, political ignorance strengthens the case for judicial power by weakening the supposed “counter-majoritarian difficulty” with judicial review. If much of the electorate is unaware of the substance or even existence of policies adopted by the sprawling regulatory state, the policies’ democratic pedigrees are weak. Hence Somin’s suggestion that the extension of government’s reach “undercuts democracy more than it furthers it.”87 If an engaged judiciary would enforce anything like the Framers’ idea of government’s “few and defined” powers, more decisions would be made not by government but by markets and institutions of civil society. This would make the phrase “the will of the people” more meaningful regarding government actions because a less activist government would reduce the voters’ knowledge burdens. In any case, facing the facts about the public’s political knowledge usefully dilutes the sentimentality and romanticism about democracy that encourage government’s pretensions and ambitions. And failures.

  IS AMERICAN POLITICS ABOUT A CONDITION OR A PROCESS?

  Americans frequently “pledge allegiance to the flag of the United States of America and to the Republic for which it stands.” But what does the Republic stand for? Simply for, as Oliver Wendell Holmes thought, the right of “the dominant forces of the community” to dominate:88 This is what one should expect from a jurist who delighted in saying such startling things as “Our tastes are finalities.” And that ethical judgments are “more or less arbitrary.… Do you like sugar in your coffee or don’t you?” And: “When men differ in taste”—that word again—“as to th
e kind of world they want the only thing to do is to go to work killing.” And: “Deep-seated preferences cannot be argued about—you cannot argue a man into liking a glass of beer—and therefore, when differences are sufficiently far reaching, we try to kill the other man.” Holmes, a full-throated majoritarian, was the linear intellectual descendent of Hobbes: “Good and evil are names that signify our appetites and aversions.”89 Hence Holmes’ reduction of American political philosophy to mere majoritarianism: There is no possibility of objective evaluation by standards of reasonableness, so force must prevail, even if in the civility of democracy that means the power of the most numerous faction to have its way.

  Because there is more to American political morality than sweeping aside impediments to unmediated majorities, courts matter in America more than in any other democracy. Unlike Britain’s constitutional documents, which are political documents that it is Parliament’s prerogative to construe, the US Constitution is a legal document construed by courts, not Congress. Whenever judicial supervision of our democracy seems tiresome, consider the alternatives. Who wants Congress exercising the final power to construe the Constitution that allocates enumerated powers to Congress? Worse still would be presidents being dispositive when they construe their explicit and, much more important, their implicit powers. The purpose served by the Constitution’s allocation of powers is the protection of liberty. The allocation serves to protect the citizens from one another as they join in rivalrous factions and to protect citizens, by means of regular elections, from the government.

  By including in the Constitution a provision for amending it, the Founders acknowledged that their handiwork might have been less than perfect as it emerged from the 1787 Convention, and that changes might be necessary to respond to unanticipated future exigencies. But the Founders also made the amendment process difficult. Only six proposed amendments have been sent by Congress to the states for ratification and then failed to achieve ratification. This is because the requirement of a congressional supermajority for proposed amendments is a high hurdle. Although constitutions are adopted in order to enable orderly social change, their primary purpose is to conserve what should not be changed, at least not quickly and easily. The primary purpose of the Constitution is also the primary purpose of American conservatism, conserving the principles of the Founding.

  It is elementary that a majority can and will do some things that are unjust but legitimate in that they are done in accordance with the constitutional rules of the political game. It also is elementary that not all injustices are created equal, and those that violate important rights must, for that reason, be declared illegitimate. Declared by whom? By the non-majoritarian portion of government, the judiciary. Because America’s judiciary is part of the fabric of popular government, the prudence appropriate for the judiciary may make it, in varying degrees, reluctant to provide aggrieved factions with a path around the political process. The judiciary’s prudent hope often is that its reluctance will compel the aggrieved to attempt a majoritarian remedy—persuasion—for majoritarian mistakes. But this prudence must be limited by this principle: Rights should not be secure only for persuasive people.

  The argument against the supervision of democracy by an engaged judiciary is that elections produce tolerably good government, and that when they produce deplorable government this is appropriate and instructive punishment for the electorate. Elections are, after all, not the only way to perform the necessary function of filling public offices. Selection by lot would suffice, if all that mattered was filling the offices. But as Harvey Mansfield has said, “an election as opposed to selection by lot is an essentially aristocratic device (because it presupposes that some people are better than others—a point to be learned from Aristotle).”90 Hence it was reasonable for the most democratic of the Founders, Jefferson, to speak without a trace of irony or paradox about a “natural aristocracy” that is to be discovered and elevated by elections. Readers can judge for themselves how this is working in contemporary America, which has a population more than sixty-two times larger than the 5.3 million when, in 1801, after Jefferson and Aaron Burr received the same number of electoral votes, Jefferson was elevated to the presidency by the House of Representatives.

  Is the natural aristocracy that is wielding Article I and Article II powers nowadays a sufficient protection of liberty and the rights of minorities? If not, it is time to remember Justice Robert Jackson’s admonition that an “achieved liberty” is an illusion.91 Liberties must be defended as they are exercised; indeed, exercising them is the defense of them. The regulatory itch of the administrative state, combined with the pandemic rent-seeking that the incessant interventions by this state in economic life invites, guarantees that liberties are always in danger of being nibbled away. The executive branch is the motor of the administrative state. The legislative branch can barely supervise an executive branch that has grown gargantuan with the legislative branch’s complicity and because of the legislative branch’s lassitude. So it falls to judicial supervision of democracy to help preserve the institutional equilibrium.

  Robert Bork, before he was a judge, and before the unsuccessful 1987 nomination of him by President Ronald Reagan to the Supreme Court provoked one of the most bitter confirmation fights in the history of the court, was Alexander Bickel’s colleague on the Yale Law School faculty. Bickel, said Bork, “identified, and attempted to resolve, the central problem of constitutional law: Our political ethos is majoritarian, but the Supreme Court, with the power to strike down laws democratically enacted, is counter-majoritarian.”92 It is, however, unsatisfactory to say that constitutional law’s central problem is, or even derives from, an “ethos.” The central premise and purpose of America’s collective existence is not simply that majorities shall rule. When the court strikes down a law because of its incompatibility with the Constitution, the court is not being counter-majoritarian. Rather, the court is preferring a previous and privileged majority, that of the generation that framed and ratified the Constitution, to a current and secondary one.

  The Constitution was written by remarkable men who are deservedly revered. And they are long gone. They believed that their handiwork, in order to be legitimately binding, had to be ratified—consented to—by conventions composed of, and selected by, interested people. Those people, too, are long gone. So why does the Constitution continue to deserve our adherence? The answer points to the basic political question of our day and to an answer to that question. The question is: Is the Constitution’s primary purpose the creation of a governmental architecture that ensures, as much as possible, the protection of natural rights? Or is its primary purpose merely the creation of a government that facilitates effective majority rule?

  If majority rule is the goal to which other goals are subordinate, then the Constitution’s legitimate claim to our deference would indeed seem to be based only on the continuing, year-by-year consent of the polity’s ever-changing majority. But how is this consent registered? Is it to be inferred from the implied consent of the people who voluntarily continue to live under the Constitution? And from the fact that they participate in the political process that the Constitution structures? And that they register their serious discontents not in violent disruptions but through the Constitution’s provision for amendments? However, tacit consent, inferred from behaviors rather than registered by explicit consent, necessarily becomes more attenuated as government becomes bigger, more active, more complex, and less transparent. As there is an ever-widening disparity between what the government does and what a majority of the people knows that the government is doing, “tacit consent” becomes diluted to the point of disappearance.

  Suppose, however, that the protection of natural rights, not the guarantee of majority rule, is the function that confers continuing validity on the Constitution. If so, the Framers’ purpose was not merely to facilitate the politics of popular sovereignty but rather to facilitate a certain purpose of politics, and hence a particular kin
d of politics. This purpose dictates the general content of politics, a politics of a limited government securing rights that are natural and hence exist prior to government.