"government by the people" is superior to the other two clauses, because it embraces them. It is

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1 Democratic Representation: Against Direct Democracy Rodrigo P. Correa G. I Democracy is government of the people, by the people, for the people 1. The formula "government by the people" is superior to the other two clauses, because it embraces them. It is not true otherwise. It is in indeed a condition for the people to govern that the origin of political power be the same people (government of the people), for it is hardly conceivable that if sovereignty resides elsewhere in a royal house for example this would delegate its exercise to the people. Neither is it conceivable that if it is the people that governs, it would to so to benefit someone other than itself (government for the people). On the other hand, it is perfectly possible that when the people hold sovereignty, this same group of people can delegate its exercise to non-democratic authorities 2. In that case we would have government of the people and maybe government for the people, but in no sense would we have government by the people. Democracy is thus government by the People. But this definition may be understood in two different ways. First, the People may be thought of as a political agent endowed with will and the capacity to act (People as a brute political agent). Second, the People may be understood not a political agent but as the name given to a plurality of agents. By themselves, both interpretations are deficient. The concept of the people as a unitary political agent is at odds with brute facts: the only real political agents are individuals. It is certainly possible that the will of a group of individuals with respect to the opportunity and content of 1 Abraham Lincoln, The Gettysburg Address. 2 France, Constitution of 1791, Title III, art. 2.

2 collective action may converge. But this convergence is contingent, unstable over time, and highly improbable, and more so as the complexity of collective action increases. If and while convergence exists, the delusion of a People as a unitary political agent may be sustained. When convergence breaks apart, the delusion disappears. Under this conception, democracy becomes the paradox of government by a nonexistent political agent. The conception of the People as the name for a plurality of political agents, in so far as it starts from the recognition that in the end it is only individuals who govern, avoids that paradox. It faces other difficulties though. First, it seems to extend the meaning of democracy beyond what its use allows. Given that in fact it is always individuals who govern, any government could be deemed democratic. But this clashes with the established use of the word democracy. First, democracy cannot mean a government that does not even pretend to be government by the people. But this is not enough: the concept of democracy is still too broad for what we usually recognize as democratic government. It will be necessary to respond to the following two questions: for a government to be considered democratic, who must govern (what universe of citizens are we talking about)? And how must they participate in the exercise of power? The first question is often answered by pointing to the idea that democracy demands congruency between the holders of political rights and those were more or less permanently subject to the power of the state 3 ; the second is answered by identifying a set of political rights. These answers will set the conditions under which a government, though in the hands of individuals, will be deemed democratic. In other words, the conditions under which the statement that the People is the name of political agents becomes 3 2

3 true. It then becomes possible to redefine the notion of the People as follows: the People are indeed a unitary political agent, with volitions, though a purely conventional or institutional one, in the same way that we speak of the will of a corporation. This conclusion overshadows a deeper problem. The conception of democracy that rests on the idea that government by the people means government under such and such conditions, referred to the definition of the universe of citizens and their rights of political participation, does not advance any criteria to establish those conditions. It is a purely formal conception, without the normative content that both the idea of democracy and the phrase government of the people, by the people, for the people carry. This missing normative content is provided by the conception of the People as a unitary political agent that goes beyond the mere conventional conception. Even if it is true that such an agent does not have a brute existence, it is also true that it has a political existence. This is what I mean: in actual politics, the idea that the People governs is considered neither absurd nor impossible, nor a merely empty legal formula that may be filled in any manner whatsoever. Invocations of the People have a specific meaning that assumes its existence as something different than a legal convention. Call this existence mythical if you like. In politics, myths are not less real than brute facts. The political scientist may ignore them at her own risk (or at the risk of the state if she has political influence over constitutional design). The paradox then disappears: government by the People is that whose form is consistent with the political conditions prevailing in society, such that it is true to declare that the People governs, even if this is meaningless at the level of brute facts. 3

4 The constitutional problem then becomes the following: which answer to the questions on the universe of citizens and rights of political participation allows us to establish congruency between the form of government and the political conception of the people? Since the People as a unitary agent has an existence other than the merely conventional or institutional one, it is possible for the People to be at odds with the legal framework of political representation. When this occurs, political institutions will inevitably be perceived as wanting in legitimacy. II Constitutional arrangements may rest on several misconceptions. First, it may assume that the People is nothing else than a legal fiat. Democracy would then be secured by means of two formal statements: that the People governs and that public authorities are their representatives. Second, it may assume the brute existence of the People as a unitary political agent. In its pure version this mistake is relatively harmless: though it would criticize all constitutions as antidemocratic, it would be utterly unable to design any democratic one. The reason is manifest: its conception of democracy rests on a delusion. When the time comes to draw rules to provide an official voice to the people, there is no way to do it. But this error has a corrupt sibling: the identification of the People with her majority of the citizens. The more radical this identification becomes, the deeper the mistake. In the extreme, government by the People means that in which every decision is taken by the majority of the citizens or it is immediately traceable to that majority. All representative forms appear as deficient. Arrangements of direct democracy are presented as the only remedy befitting the democratic ideal. 4

5 By identifying the People with the majority of the citizens, this conception responds unsatisfactorily to the question of legitimacy. The question may be so stated: under which conditions is the exercise of State power legitimate? It is a question particularly urgent for those who are negatively affected by that exercise, whether in general or with respect to a particular decision. It begs the question to answer that collective action is legitimate because it corresponds to the will of the majority. It is not possible to respond to this criticism by endorsing unanimity as the only legitimate rule for collective action. Such answer constitutes a third source of error. From the inexistence of the People as a unitary political agent, the proposition that the only normative reference in politics is related to individuals is derived, and it is therefore claimed that only collective action to which all affected citizens have consented, is legitimate. This theory confronts a paradox. Inaction reflects a preference for the status quo. As any preference, that one also requires justification. In order to provide it, unanimity in favor of the status quo would be required. But normally there will be no unanimity. In that situation, legitimacy would be impossible, since neither action nor inaction would be unanimously supported. That is the conclusion of a theory that radically denies the possibility of a normative reference to the collectivity. It seems that the problem only admits of a solution where the idea that the People, though a unitary political agent, constitutes at the same time a plurality of all the citizens, is generally accepted. Only here there is space to respond to the question of legitimacy in the following way: the exercise of political power is legitimate because every citizen, as a member of the People, is its author. Democracy responds to the problem of legitimacy by transforming political heteronomous domination in autonomous self legislation. 5

6 It is necessary to insist on the character of this transformation: it operates at an intermediate level, neither purely conventional nor purely naturalistic. It is not satisfied by stating that political decisions are legitimate only because the law declares that all citizens constitute the People, so that the will institutionally attributed to it be understood as matching the will of each one of the citizens. Nor is it satisfied by declaring that the People is an agent whose will in fact matches that of each citizen. The transformation must recognize the manifestly obvious: that the will of a significant number of citizens may disagree with the state s will and that, even so, it must be possible to affirm that the state will is the will of the People and, in some sense, that of each one of the citizens. The political problem must be distinguished from the theoretical problem. Legitimacy is a social phenomenon. It exists to a greater or lesser degree in any particular political society and the political scientist cannot create it. In this sense, the possibility of democracy depends on the factual existence of a particular political phenomenon consisting of the neither purely conventional nor purely natural existence of the People as unitary political agent. The political problem concerns the creation of the conditions favoring that political phenomenon. The theoretical problem consists in enquiring if that political phenomenon is possible and, if it is, in identifying the conditions favoring its possibility. That the phenomenon is possible is confirmed by the history of contemporary Western democracies. It is indeed manifest that in the practice of these democracies references to the People are ubiquitous and their political meaning is intelligible to the citizens. In the next pages I will offer some thoughts on the conditions favoring said phenomenon. The intermediate existence of the People requires a medium. Politics is that medium. In that sense, one can say that the People, as a collective unitary agent, exist politically. But this requires 6

7 the possibility of establishing a differentiation between individual preferences and the normative reference of collective action. If the latter can only be conceived as action for the satisfaction of individual preferences the People becomes impossibility. Political action would then merely appear as the action of individuals thriving to capture the state apparatus in order to use collective action in their interest. Accordingly, the contingent coincidence of the preferences of groups of citizens would appear as factions. Democracy would then be that form of government where factions compete for political power. The necessary normative reference may be provided by the ideas of reason, general will, common good, or the like. In this sense, Rousseau s statement that: There is, frequently, significant difference between the will of all and the general will. The latter has only the common interest in view; the former refers to private interest, and it is not different than the addition of all private wills. But take from these same wills the plus and the minus, which destroy each other, and what rests as the sum of the differences is the general will 4. Whatever way this normative reference is conceptualized, it is possible to state the following. On the one hand, it identifies the will of the People with something different than the mere aggregation of individual preferences. On the other hand, actual politics must keep in line with this normative reference. The former provides that distance between the preferences of each citizen and the grounds for collective action which makes possible for each citizen to accept the possibility that this action is in some ways her own, notwithstanding that they may be in conflict with her preferences. The latter means that democracy requires that politics respond to a certain ethos. With respect to institutional design, the consequences are twofold. First, a purely formal statement that the end 4 7

8 of the state is the promotion of the common good is insufficient to guarantee a democratic political order. Second, some institutional arrangements are totally incompatible with democratic politics, while others favor them. The key for good constitutional design is to identify them correctly. III Democratic representation requires certain conditions both at the social and at the institutional level. At the social level it requires a general disposition both to conceive of a normative reference above individual preferences and to postpone the latter in favor of collective action. At the institutional level, the process for the formation of political will must be rational and open. As regards the former, under certain extreme conditions democracy may be impossible. That would be the case where subjectivity has colonized imaginations to the point where any normative reference beyond individual preferences has become simply unintelligible or completely deprived of rational force. This condition is the preface to anarchy or tyranny. I take it that Western contemporary societies have not reached this point. But it is beyond the question that modernity has eroded the force of objective normative preferences?. The medium for the political existence of the people has thinned significantly. This has made democratic legitimacy more difficult. Yet the idea of autonomy has not been abandoned. Rather, it appears as if it could be satisfied only by guaranteeing identity between collective action and the individual preferences of each member of a political community. Since this is impossible, illegitimacy lies at the end of the road. 8

9 Consider now the institutional level. Since the People does not exist as a brute fact, neither does its will. The will of the people is shaped by the political process until it gets canonically formulated in legislation and realized in the actions of government. This process must be configured so as to reinforce the thin medium in which it is possible to establish a normative reference. Precisely because this medium has thinned significantly, rendering more difficult both the institutional configuration of democratic representation and the practice of democratic politics, it is ever more frequent to search for repair in mechanisms of direct democracy. These include referenda, primary elections for choosing candidates to electoral offices, the democratization of political parties, the popular initiative for legislation, and recall elections. It is unlikely that these remedies will work. The reasons thereof have already been stated: on the one hand, they rest on the naïve identification of the People with the majority of the electorate; on the other on the other hand, insofar as they reinforce the anarchical forces in society, they cannot engender legitimacy for state action. The idea of a spontaneous social organization, free of domination, is a Utopia. The more complex the political society, more power will reside among different structures of the organization. Constitutional law must institutionalize these structures of power, so as to favor an open process of political will formation. In doing so it must privilege those structures better positioned to mediate between the interests of private citizens and the state, articulating political programs establishing a principled and coherent balance among those interests. Those associations that organize citizens around certain principles to compete for electoral support to reach positions in government can best serve that purpose. Constitutional law must therefore favor political parties and put obstacles to the direct influence of social powers on state decisions. 9

10 The legal regulation of political parties does not mean their radical democratization. I am not thinking in the problem of militant democracy, but in the destitution of their governing bodies of all power beyond the mere administration of the decisions of the assembly of militants or of the whole electorate. Such democratization would in fact mean the dissolution of parties and the renunciation to the leadership that they can have in the formation of the state will. On the other extreme, that radical democratization could end in just one party. The legal regulation of the structures of power must therefore be guided by what at first sight appears as a paradox: in order to favor democratic representation, it is necessary to renounce the radical democratization of political parties. The risk that party officials may capture the party and block their renewal cannot be avoided, but its pernicious effects may be conjured by lowering the entry barriers to political contest by means of facilitating the creation of new parties. The proliferation of political parties may represent a problem for democratic representation as well. This problem is more serious in a presidential regime than in a parliamentary one. In the latter, it may affect governability, insofar as the fragmentation of parliamentary representation may difficult the formation of government and, once formed, its stability over time. But once formed, and as long as it keeps the support of the parliamentary majority, there are strong incentives for the coalition parties to exert their leadership to raise public support for the government. When this ceases to be possible, the government falls, and eventually, general elections are called for. In this manner, the parliamentary system establishes an adequate tension between the action of government, party leadership, and public support. This does not mean that the parliamentary system is without problems of representation. These appear with conspicuous clarity when the fragmentation of the parliamentary representation comes together with the lack of will of the parties to participate in the government. Or when this 10

11 will is subject to conditions that cannot be accepted by the possible partners in the government coalition. When this happens, the formation of government may become impossible. This may explain what has recently occurred in Spain. And something similar may also happen in the Netherlands, where the high fragmentation of political representation in Parliament and the politics of Geert Wilders are putting under test a political pragmatism accustomed to diverse coalition governments. One may wonder whether parliamentary systems with proportional electoral systems should explore mechanisms analogous to ballotage when a second consecutive general election has to be called for after failure to form government. Different mechanisms could be explored: establishing or raising the threshold necessary to obtain parliamentary representation (in which case the electors of the smaller parties are not forced to vote for their second or third choice, though their vote may lose significance) or restricting the participation in the second election to the parties that in the first one obtained a minimum parliamentary representation (in which case the electors of the excluded parties are forced to vote for their second or third choice). Such mechanisms would undermine the negotiating power of small parties in the formation of government coalitions. Wouldn't this provide a reasonable equilibrium between the chance to defy established parties and the need to shape a non anarchical democratic will? The possibilities of democratic representation in a presidential regime are considerably less. The main reason thereof is that the mechanisms for democratic political control are fairly imperfect. If the government loses touch with the people, there is no mechanism to put an anticipated end to its term in office. Under these conditions, democratic legitimacy of government rests exclusively on its popular election. This link is insufficient to sustain the idea of democratic representation. The mechanisms to compensate for this deficit are necessarily wanting. One of them is midterm 11

12 elections, characteristic of the United States Constitution. These elections result in a renewal of the mandate to the party in government, in which case the problem gets effectively solved. But the inverse outcome solves it only partially. The executive, losing majoritarian popular support, will see its capacity of action severely limited by an adverse Congress. It will not be able to carry forward a program for which is not possible to say that it corresponds to popular will any longer. Thus what the People does not will gets institutionally expressed. This purely negative expression for the will of the People is incomplete and concerns the less significant part of that will. Certainly, it is much simpler to give form to what the People does not will than to what it does will. Because of this, midterm elections are particularly troublesome. The most that the opposition can aspire in the short term is to derail the government. The incentives to give form to popular resentment are more intense than those to articulate a positive will. What sense would it make to propose governmental policies, probably the most effective way to give form to the positive will of the People, if even winning the elections the opposition will not be in government? The other mechanism is the recall election. It has the same problems of midterm elections, aggravated by its exceptional character. This exceptionality demands radicalizing the negative will of the People, polarizing political conflict and leaving the political community in a difficult situation whatever the outcome of the election. If these thoughts are correct, one would be forced to conclude that the parliamentary system is much more adequate to make democratic representation possible than the presidential system. IV 12

13 The will of the People officially stated, typically by the promulgation of a statute, corresponds to a specific point in time. This will is by itself unable to sustain the democratic legitimacy of the statute into the future. There is no reason in principle for the past will of an agent to have priority over its present will. The story of Ulysses and the sirens does not prove the contrary. The story is not simply about giving priority to past will over present will. It bears upon the problem the circumstance that Ulysses will is free when he orders to be tied at the mast and not to be heard later as the sirens appear; on the contrary, his will is not free under the spell of the sirens. This image has been used to justify constitutional limitations upon democratic will. But this is not the problem that concerns us now. We are not enquiring about the legitimacy of constitutional decisions, but about the legitimacy over time of decisions democratically adopted. To this problem, Ulysses and the sirens have nothing to contribute. The legitimacy of a self imposed obligation remains as long as its sustaining will exists. This idea has to be embodied in legal institutions. Now, the will of the People does not exist as a fact prior to the political process. Therefore, it would be a mistake to declare that the legitimacy of a statute decays merely because a poll shows that the majority of the people disapprove of its content. What is critical is the possibility to repeal the statute through democratic mechanisms. When that possibility exists, the fact that it is not repealed is sufficient validation of its democratic legitimacy. This possibility of democratic repeal of the laws acquires priority over their pedigree. It is for this reason that a statute passed under non-democratic conditions is not illegitimate if democratic repeal is available and it is not repealed. On the contrary, a statute democratically approved, without regard to the high quorum with which it was approved, cannot claim a democratic legitimacy that would justify its immunity to democratic future repeal. Therefore, for a law to justify its pretense to impose itself over future democratic will, it must be possible to advocate in its favor foundations 13

14 for its legitimacy other than its democratic pedigree. Those foundations are scarce and their reach is limited. It follows that the extension of counter majoritarian mechanisms beyond what those foundations allow, carries the danger of delegitimizing the political system. * * * In conclusion, constitutional reforms aiming at strengthening democratic representation by establishing a more direct correlation between individual interests and state will are meant to fail. They rest on a naïve understanding of popular sovereignty. Even though democracy is a form of government where power comes from below, it cannot make without structures of social power where at least part of the power comes from above. To make democratic representation possible, law must establish an adequate tension between state powers, those structures of social power and popular support. Presidential systems are particularly ill suited to produce that equilibrium. Though not without problems, parliamentary systems are far superior. Finally, extending the reach of the constitution to political decisions for which no material justification can be reasonably produced, undermines democratic representation by excessively limiting its dominion. 14