There should be a law to the People besides its own will. – Lord Acton
From our days in diapers, we citizens of modernity are taught to revere democracy. As is true of many lessons, this one is good if taught properly. And to teach this lesson properly requires asking, debating, and carefully answering questions such as “What exactly is democracy?” “What are the background conditions that must hold in order for democracy’s use to promote human flourishing?” “Compared to what? That is, what are democracy’s alternatives? And if democracy is indeed superior to its alternatives, how so, why so, and when so?”
Yet judging from popular commentary, too few people ask such questions. Democracy today is simply taken to be synonymous with majority rule under a wide franchise. The outcomes of such elections are regarded as reflecting the so-called “will of the people.” And the will of the people is not to be denied or denigrated. An individual might legitimately disagree with the preferences of the majority, but that these majority-held preferences should be enforced as the law of the land is not to be questioned. “If you don’t like the outcome,” so goes a familiar refrain, “vote for different outcomes.”
Of course, most Americans agree that some small set of restrictions, imposed by a constitution, are appropriate on what the majority may do. Today, for example, most American conservatives believe that the majority has no legitimate authority to obstruct individuals’ right to own guns, while most American Progressives believe that the majority has no legitimate authority to obstruct women’s access to abortions. But these constitution-level exceptions to the rights of the majority to do as it pleases are just that: exceptions. Democracy’s overriding ethos today holds that the majority has the right to do largely whatever it fancies.
This ethos is rooted in three popular misconceptions. The first of these misconceptions is that, just as each flesh-and-blood individual has a will, “the People” as a group have a will. The second is that the “will of the People” is accurately revealed by the outcomes of majority-rule elections.
Scholars – on the political left, right, and center – have spilled oceans of ink exposing these two misconceptions. I summarize some of these exposés here and here. And so in this essay I’ll say no more about these two misconceptions.
Less well understood is the third misconception, which is this: Just as an individual should be free to pursue his or her own preferences without being obstructed by those who don’t share those preferences, the People (as represented by the majority) should be free to pursue its own preferences without being obstructed by those (the minority) who don’t share those preferences.
Just as Jones has no business obstructing Smith’s choice to consume vanilla ice cream rather than chocolate ice cream, the minority has no business obstructing the majority’s choice to consume whatever policies it prefers. Of course, just as Jones is free to try to persuade Smith to adopt different preferences, the minority is free to try to persuade the majority to do the same. But both Jones and the minority must go along with the others’ decisions, like it or not.
The classical-liberal idea that each individual should be accorded maximum possible freedom to choose and act as he or she wishes has morphed into the modern “liberal” (more accurately, democratic socialist) idea that the People, as represented by the majority, should be accorded maximum possible freedom to choose and act as it wishes.
Yet there are at least two problems with leaping from the classical-liberal idea to the (very different) modern “liberal” idea. The first is that when an individual makes private choices, such as which flavor ice cream to eat or where to vacation, that individual doesn’t thereby impose those choices on other individuals. Jones can eat whatever flavor of ice cream he likes regardless of the flavor chosen by Smith.
The second problem with leaping from the classical-liberal idea to the modern “liberal” idea runs deeper. It begins with the fact that the choices that we make as individuals are always made in a dense, vast network of social and legal constraints. When you or I as individuals make choices for ourselves, we do so incrementally, seldom aiming to fundamentally alter our own lives, and much less to fundamentally alter society. And even on those rare occasions when you or I do make decisions that are life-altering – say, when we choose to have a child, or to move to a new city thousands of miles away – we do so constrained by countless social norms and legal rules. These norms and rules not only give us important knowledge about what to expect as a result of our choices, they also minimize the negative impact that our choices have on third parties.
I know, for example, that if I choose to have a child I must assume a vast array of parental responsibilities. I know also that I’m unable – without subjecting myself to harsh social and legal penalties – to unilaterally shove those responsibilities onto third parties.
The freedom of choice that classical-liberal institutions accords to individuals is not remotely unconstrained.
Yet when today’s electoral majority seeks to impose its will it seeks to do so largely without constraint. Not only does the majority today demand minority acquiescence even when its margin of victory is razor-thin, it is also constrained by far fewer of the social norms and legal rules that always constrain the choices of individuals. And just as no individual can be expected to choose wisely when he or she is unmoored from the obligation of heeding social norms and legal rules, a majority cannot be expected to choose wisely when so unmoored. (Indeed, the majority is likely to choose even more recklessly than an individual, if for no reason other than that, as my colleague Bryan Caplan explains, politics fuels irrationality in voters. But the topic of voter irrationality is for another time.)
Freedom of choice is wonderful, and democracy – properly understood and constrained – can be a blessing. But democracy becomes a heinous curse when its ethos is reduced to nothing more than the belief that the majority is free to choose whatever it fancies unconstrained by higher law, such as a constitution, and by social norms that protect the rights of all, both as individuals and as members of minority coalitions.
