Deliberative Democratic Law 1 John Ferejohn NYU Law School October 2014

Deliberative Democratic Law 1 John Ferejohn NYU Law School October 2014 Introduction Since the early 1960s the law of democracy has focused largely on achieving political equality in elections. 2 From there, it has gradually reached outwards to regulate supporting practices (ballot access, registration, apportionment, districting, party organization, choice of electoral system, campaign contributions, etc.). The principal ground for these extensions has been this: in order to effectuate meaningful political equality it is necessary that various institutional practices be regulated to assure that everyone eligible citizen has a right to vote and have her vote counted equally. 3 In this respect, the scope of democratic law is justified by the fundamental requirement that votes are to count in the conduct of government and that they are to count equally. Democratic law is concerned, in this respect, to give effect to and regulate the exercise of what has been called positive liberty the liberty of the people to govern themselves as free and equal citizens. I argue that the electoralist focus of the law of democracy even when realized ambitiously is too narrow and that it rests on a simplistic model of democracy. In the next section I present a stylized description of this model folk democracy which consists of commonly shared understandings about what democracy is and requires. Folk democratic understandings developed very early in American life, certainly by the time of the revolution, 1 Research for this paper was supported by the Filomen D Agostino and Max E. Greenberg Research Fund. 2 Evidently the constitutional status of the Senate is the hard constraint against achieving full equality in voting rights. 3 But since democracy, as such, has no (explicit) constitutional basis, the doctrinal resources for regulating such things as districting are limited and uneven leaving aside nongovernmental such as political parties and interest groups. The requirement that everyone is entitled to vote and that votes are to count equally is relatively recent and has only gradually expanded its reach over time. 1

and were reflected in the Anti-Federalist opposition to the Constitution. 4 These ideas were strongly in evidence by the time of Tocqueville s visit when they underlay the creation of Jacksonian party based democracy and they have surfaced periodically in populist and progressive reform movements. The root of folk democracy is skepticism about a distant national government, influenced by cosmopolitan elites, and suspicion of delegations of power. Similar beliefs can be found in writings of Rousseau, Thomas Paine, and many of the antifederalists. Democratic law is evidently a complex mix of constitutional, statutory, and doctrinal elements and has evolved greatly in the last decades. Not all of its components directly reflect folk democratic beliefs, but even doctrinal developments often reflect folk democratic influences even if indirectly. Folk democracy sees the citizen not only as the unique source of political authorization but also as competent to effectively pursue and protect her interests at the ballot box and, in this sense, sees majority decision in elections as the core of legitimate democratic rule. Though this populist basis is resilient, folk democracy is not necessarily hostile to representative government. Indeed, it developed initially as way of critically accepting representative institutions by a people who had long been used to living in self-governing communities. 5 While one can agree political authorization must come from the people in elections, folk democracy s faith in citizen competence to pursue their interests seems unwarranted. It is false 4 The constitutional opponents saw it as an attempt by elites to introduce a kind of aristocratic rule with infrequent elections and a powerful and distant national government which would undermine and usurp the democratic state governments. While the constitutional framers were successful in overwhelming these critics, their views came increasingly to prevail in public opinion. See especially Gordon Wood s fine treatment of the rapid development of democratic beliefs and understandings in the early republic. The Radicalism of the American Revolution, New York: Vintage Books, 1991, as well as Gerald Leonard, The Invention of Party Politics, Chapel Hill, University of North Carolina Press, 2002. 5 The slogan, no taxation without representation arose in the 1760s in response to the effort of the British to tax the colonists for defending them against the French and hostile native Americans. For a brilliant account of the rise of representative democracy see Bernard Manin, Principles of Representative Government, Cambridge: Cambridge University Press, 1997. There he argues that the key features legitimating representative government entailed freeing aristocratic representatives to rule, without instructions, between elections while, at the same time, empowering public opinion to evolve freely as a critical force outside of governmental control capable of guiding electoral choices. 2

as an empirical claim and it is counterproductive as a legal presumption. I believe there is ample evidence of citizen incompetence, some of which I present below. But even if these ideas are accepted some might argue that assuming citizen competence maybe useful as a presumption. The presumption of agent competence (even if empirically false) in private law is arguably valuable in facilitating voluntary transactions, at least in circumstances in which individuals bear the costs and benefits of their decisions and where there are not large power or informational asymmetries among them. But when full internalization is impossible or where agents are very unequal in power or information, the presumption of agent competence will often lead to bad outcomes. When making democratic decisions individual voters never bear the consequences of their choices but can always vote to push costs off onto others. They could do this on purpose or inadvertently though neglecting the interests of others. This claim is not meant to undercut the core notion of democracy. There must be some way, however indirect, that people can play some important role in ruling themselves. For that reason certain voter judgments (specifically those made in fairly conducted elections) must be equally respected in any genuinely democratic theory 6 but it does raise the issue of how equal concern for the interests people have can be reconciled with equal respect for their votes. The folk democratic answer is to permit the limited delegations of authority to electorally accountable representatives who must compete for office in frequent and fair elections by explaining and justifying their policies to their voters. I think that response, while pointing the right direction, is insufficient essentially because it places too much reliance voters to police officials whose actions are hard or impossible to observe. Folk democracy undervalues the requirement that government act in the pursuit of the interests of each of its citizens. This pursuit requires the exercise of practical reason by diverse institutionally situated public officials to assure attention to the interests of every person. And it 6 Democratic theories differ as to which decisions are to be decided directly by voters, which by other authorities, and which ought to be decided privately by individuals, but modern theories place most of their focus on the election of political leaders and require that elections be conducted in ways that do not stretch the capacities of citizens to make reasoned choices. 3

requires as well private actors throughout civil society to actively participate in this activity as well. The democratic promise, to be effective, must be realized by means of the complex institutional apparatus of the democracy, which includes (informal and formal) institutions of civil society as well as courts and public agencies. To vindicate the democratic promise it is necessary that these other institutions be sensitive to the interests of people even if there is not sense that they are or could be held accountable electorally. This requires that democratic law must accept an even more ambitious agenda than it has yet entertained. 1. Democracy in Theory One way to understand the extent of that agenda is to consider democracy in light of what is arguably its most attractive interpretation, on that sees democracy as a system of government that accords to each person equal concern and respect. Some conception of deliberative democracy seems best suited to vindicate this notion of democracy. 7 While the law of democracy, as it has developed over the last half century, has generally aimed at achieving equal respect for citizens as (potential) political agents, it seems less sensitive to issues of equal concern with persons as sources of value. In this respect a deliberative approach to democratic law can be contrasted with an election and voting centered approach. Current deliberative conceptions of democracy have been based on idealized models of justification aiming to give conditions under which coercive orders may be justified to those subject to them. 8 Rawls s notion of justification rests on the ideal of an overlapping consensus over some basic laws laws that each citizen could accept from within her own comprehensive view. Such laws can be 7 William Eskridge and I have attempted to describe the roles Congress, courts and administrative agencies play in seeking to determine (deliberatively) the interests of citizens and effective means of pursuing them. We did not seek to place these vital activities within the scope of the law of democracy. William Eskridge and John Ferejohn, A Republic of Statutes, New Haven: Yale University Press, 2010. 8 I take Rawls s and Habermas s theories as bracketing the range of justificatory strategies in the following sense: Habermas s ideal speech theory requires that every person subject to a collective decision is entitled to participate as equals in making that decision. Rawls s ideal is attained by reflective derivation of the content of public reason, possibly carried out by a single mind, taking full account of the various conceptions of the good held by members of society. Some scholars argue that while both Rawls and Habermas present theories of justification, Rawls s theory is not really a theory of deliberation at all, as it does not seem to require the active participation of people in making binding decisions. 4

justified by appeal to what he calls public reason. But policies or laws can be justified in Rawls s sense while being rejected in fact by actual members of society. This is not to disparage (for example) Rawls idea that coercive policies must be justified with appeal only to public reasons. Nor is it to discount the Habermasian idea that justification is connected to the procedures by which decisions are made. Both thinkers embrace abstract ideals such as reciprocity and civility, but it is not clear that these ideals can offer much substantive guidance in making collective decisions. It is a little hard to see, for example, how public reasons theory could be of much help in deciding contentious issues like abortion, or gay marriage, or euthanasia, each of which cut into the heart of strongly held comprehensive views (and in which the refusal to decide is to decide for one side). It is also hard to agree with ideal speech theorists who argue that only public reasons would be persuasive in ideal speech settings and that private regarding reasons can never be admissible in public justificatory discourse. After all, if the burdens of pursuing common objectives fall unevenly on people or points of view, how can people be reasonably expected to refrain from questioning or complaining about the burden they are asked to bear? Moreover, if want our institutions to respect everyone s interests equally, burdening one person at the expense others is always a public concern. Deliberative theories in both of these traditions seem to me to be external to actual decision making practices. This is because their focus is mostly on justification of the exercise of coercive authority to those bound or affected by them, rather than on choice of action or policy by institutionally situated public officials. In effect both of these approaches insist that justification take place prior to action either by requiring that authorities restrict themselves to actions that meet Rawls s public reasons test, or that the decision be agreed to in an appropriate deliberative setting. Such requirements are often impractical in modern states. For that reason we normally require only that political decision makers be accountable to the people in elections or in some other way. Accountability does not alleviate the (moral) duty 5

of official to take justified actions, as far as they are able to determine which these are. 9 This is a very demanding requirement on political officials given that they cannot freely consult the people at each instant. 10 For that reason I am attracted to a nonideal deliberative theory one that I associate with Aristotle s focus on practical reasoning which is concerned with choosing the best available action in light of all relevant reasons. The Aristotelian notion is workable in situations of uncertainty and ambiguity. It recommends choosing the best available course of action in light of reasons that are (or could reasonably be) known at the time. Of course such a choice may turn out, after the fact, to be wrong or insufficient in some sense. In this paper, therefore, I focus on evaluating and reforming institutions from this practical deliberative standpoint. The various institutions of government are assigned different functions within the constitutional scheme: each is required to make different kinds of decisions, operate on different 9 I am sure that there will be imaginative theorists who would argue that our actual practices, while defective in many ways, actually contain the seeds of Habermasian ideal speech norms. Maybe. The approach I take here might be consistent with those taken by Rawls or Habermas but I am operating at a lower level of abstraction. For example, in Political Liberalism Rawls says that the Supreme Court is an exemplary deliberative institution and that the reasons it gives are (in principle) public reasons. Habermas criticizes Rawls s conclusion for seeming to put the Supreme Court and kinds of reasons it produces on a pedestal: he argued that Rawls privileges negative liberties over positive or democratic liberties by putting a nondemocratic court in the position to regulate or check the majority. Habermas himself regards many (negative) rights as positive law enactments that the people may choose to (democratically) institute or not. He rejects Rawls s idea that the reasoning of the Supreme Court is objectively distinguished as a deliberative body and argues that a democratic people must be able to determine discursively which rights the people have and set up institutions to enforce them. Habermas argues that positive and negative rights are co-original. In that sense particular rights and their enforcement are always up for grabs democratically. This is not to say that Habermas thinks that most (negative) rights are optional: only the rights necessary to (ideal) speech are always required as they ground the democratic authority of the people. In his response to Habermas s critique, Rawls seemed to take roughly the same position. In particular he agreed that every democratic official (including ordinary citizens) have deliberative obligations and that positive and negative liberties are more or less co-original as Habermas argues. It is not clear to me that this was a concession or a clarification of his position in Political Liberalism. The view I take in this paper seems consistent with Rawls response to Habermas but is perhaps less far reaching than Habermas s own views. 10 Cohen shows how Habermas s notion of the co-originality of private and public rights derives from his conception of democracy: Habermas' radical account of democracy takes its fundamental orientation, I said, from the idea of a self-organizing community of free and equal citizens. Radically understood, democracy is not simply a matter of selecting among competing elites (through regular elections), nor simply a matter of ensuring, through such selection, a protected framework of private liberties, founded on antecedent liberal commitments. Instead democracy is a form of self-rule, and requires that the legitimate exercise of political power trace to the free communication of citizens, expressed through law. Joshua Cohen, Reflections on Habermas on Democracy, Ratio Juris. Vol. 12 No. 4 December 1999, 387. Habermas argues that rights of private and public autonomy (rights of participation) are equally fundamental (co-original): Indeed, each is required to explain one another. (Cohen, 388-9). 6

time scales, and at different levels of generality. This suggests that different institutions may have, or should have, distinct deliberative responsibilities which must somehow fit with their capacities. This idea is at the root of the notion of separating governmental functions among various institutions and assuring that an institution charged with exercising a particular power, have adequate deliberative capacity to do its job effectively. Sometimes this requires limiting or postponing democratic accountability. If (as Hobbesians maintain) the first virtue of government is to govern to maintain order and to secure a minimal level of prosperity sufficient for residents to plan and live their lives effectively -- some parts of government may occasionally have to act quickly or secretly, perhaps without always being able to take time to deliberate fully and openly about the consequences of their actions. The executive is often singled out as that part of government which must sometimes act energetically in this respect. But other parts of government may be forced to make similar choices. The necessity of prompt action cannot excuse the executive from acting for reasons, but this necessity may limit the ways its internal deliberations can proceed and how and when the results of internal deliberations can be offered to those affected by the policies. The legislature can usually afford more time to make its decisions partly because it must ordinarily frame its policies prospectively and at a fairly high level of generality and partly because it needs constantly to be open to public complaints and arguments. Still, no matter how complex the issue is at the end of the day the legislature must decide whether to adopt a proposal or not. This usually leads the legislature to use some relatively decisive mode for making decisions such as some variant of majority rule (or possibly a special majority rule). The judicial function operates on a different and usually more elongated time scale than the other branches, and can gather much more fine grained information about legal claims, but courts may be less equipped to hear from other parties who may be affected by precedents they may set in a particular case. But again, the need for courts to decide the disputes presented to them often leads 7

them to adopt the method of majority rule, as its normal decision making mechanism. 11 And finally, voters too must make binding decisions on election day without the option of asking for further information or reasons. They simply have to vote and their votes, taken together, determine who will take office. All this is simply to say that deliberative practices must often be (and ought to be) shaped by practical considerations (such as the need for speed, decisiveness, or secrecy) which arise from the functions these separate institutions are expected to perform. But they are also shaped by the institutions particular constitutional responsibilities. Democratic deliberative theories may suggest very different critiques and reforms of internal institutional rules for making collective decisions. One expects judges and legislators and ordinary citizens to conform to distinct norms. In some institutional circumstances it may be desirable to seek consensus but that may not always be practical or required. The demand for consensus may, for example, favor the status quo in unacceptable ways or it may simply make decisions too slow or too costly to be effective in achieving their purposes. 12 At the same time we need to keep in mind that the most important goal of the critical enterprise is not (only) to reform institutions but, assess the whole complex of institutions from the standpoint of the interests and views of its citizens. An institutional approach to deliberation can help us to think more clearly about the scope of deliberative democratic law which would aim to regulate not only the practices associated with voting, elections, apportionment, and campaign finance but also those deliberative practices that normally take place in other institutional settings (inside and outside of government, and specifically, in civil society), but which shape way that governmental concern is or is not manifested. Deliberative democratic law would be concerned with delegations of authority from more to less popular institutions. What is the Constitution itself but a massive 11 Deliberation that takes place in the shadow of voting (by majority rule), where if a consensus cannot be reached, a decision will be made by a part of the group, is the subject of John Ferejohn, Instituting Deliberative Democracy, Designing Democratic Institutions, (edited by Ian Shapiro & Stephen Macedo), New York: New York University Press, 2000, pp 75-104. 12 The most notorious of these practices is found in the US Senate, where business is normally conducted under unanimous consent agreements and members are permitted (without any public announcement) to block or stall legislation they may object to (without giving reasons either). 8

delegation of authority from the people to their representatives? It would seek to regulate legislative, and judicial procedure, as well as administrative decision making. It would regulate issues of transparency and accountability and would remain critically oriented to constitutional law itself. In other words, the law of deliberative democracy ought to be directed to making our imperfectly deliberative democracy work to achieve conditions of equal concern and respect and this can require substantial changes in existing constitutional structures and law. Obviously, this amounts to a big extension of the traditional domain of the law of democracy. I do not think that all of our governmental institutions are or should be expected to be fully deliberative in (any of the ideal) ways that the term is normally used. Some of the impediments to deliberation are rooted in pretty deeply held notions concerning democracy: the insistence that democracy requires that majority decisions (reached in elections and legislative voting) be respected independently of their contents or whether they were reached deliberatively. In other words, if democracy requires that each person be respected as a political agent, it may require that the people be permitted to make their own mistakes and live with the consequences. But in a modern democracy, the people do not make their own mistakes, their elected or appointed agents do. And this suggests that there is reason for the people of these democracies to subject the choices of their officials to various modes of deliberative oversight in addition holding them accountable in elections. There may also be problems of the second best: the best way to improve a practice may not be to perfect it in one aspect or dimension. But an ameliorative perspective of the kind embraced here is not actually vulnerable to this critique. After all, for something to be an improvement of a practice it must in fact improve it. Actually the trouble happens at the other end: if it turns out that reforms are sticky or path dependent then it is possible that local improvements can get stuck, preventing us from ever achieving a first best result. This seems to me to be a problem for theology rather than political science. 9

2. Folk Democratic Theory 13 The key idea in the folk theory is that democratic powers are best exercised directly (by the people) or delegated to their elected representatives in which case there is an added requirement of justification or reason giving directed downward to the people in elections. In turn, representatives can exercise delegated powers or re-delegate them to agencies or courts (with a further diminution in democratic legitimacy) in which case further justificatory burdens are imposed. And finally courts, which exercise more remote delegations of authority are subject to even more stringent justificatory requirements. The point is that justifications are owed to the citizens whenever delegated authority is exercised. The folk democratic assumption is that democracy works best at the lowest or most popular level, and if power must be delegated justifications must be offered in return. Folk democratic theory, therefore, legitimates political decisions in proportion to their distance from the people. For example, direct or popular decisions those made in a referendum or popular initiative are considered to be authoritative because they are made by the people themselves and not by their representatives. Popular acts are considered sovereign expressions in this sense. Indeed, seeking or demanding reasons from voters is actively discouraged out of worries about voter intimidation or bribery, or perhaps as a sign of respect for the sovereign nature of the voters decisions. 14 These beliefs are reflected in the institution of the secret ballot as well as the prohibition on campaigning close to voting booths. Folk democracy insists that representatives remain close to the people in frequent and fairly conducted elections and that appointed officials must justify particular exercises of state 13 This section is drawn partly from a paper I wrote with Pasquale Pasquino, Constitutional Courts as Deliberative Institutions: Toward an Institutional Theory of Constitutional Justice, (with Pasquale Pasquino), Constitutional Justice: East and West (Wojciech Sadurski, ed.), The Hague: Kluwer Law International, 2002, 21-36. 14 And in any case, even if reasons were somehow extracted, there is every likelihood that they would be sparse, illformed and incoherent. 10

authority by tying such exercises closely to statutes. 15 In this sense it is characteristically suspicious of the exercise of delegated powers, which are really double delegations, especially when that exercise is shielded from the public view. From the perspective of folk democracy the right to vote is the fundamental democratic right, and the law of democracy is that body of legal norms aimed at vindicating this right throughout the political and legal systems. Folk democracy rests on the assumption that the people indeed, each person is competent to make choices among candidates (and to choose among policies where popular referenda are available), and that those choices are to be accorded full and equal respect by officials and other citizens, independently of their content. As long as each person s vote is fully respected (in the ways worked out in democratic law), it is thought, policy making will then (mechanically) reflect equal concern for each person s interests. In effect, folk democracy assumes that we will get equal concern for our interests if only we can fully implement the requirement of equal respect for our votes. 16 Elected representatives, because they are closest to the people, are expected act on behalf of their constituents and to explain and justify their actions to them. These justifications can take the form of campaign pledges and party platforms which are only loosely related to the actual actions taken, many of which are invisible to constituents in any case. The reasons offered by an elected representative are directed to her voters generally (in support of her claim to act on their behalf and in their interests) and not necessarily to those to whom coercive ordinances are directed. In any case, these political promises are not enforceable in courts but only (if at all) politically at elections. Of course legislators do more than this in generating a legislative record of proceedings on the floor and in the committees. And they produce reports and other materials that are more closely tied to legislative actions. And sometimes, these explanatory materials can be legally consequential. 15 Parliamentary democracies may actually find it less problematic to keep the government close to the people because when government loses parliamentary support it is generally required to call elections, whereas the American system of fixed terms permits lame duck governments and congresses. 16 I will not address, here, the gap between the citizen and person that this definition raises. 11

Take another step along the path and we get to administrative agencies. Agencies are required to give reasons for certain of their actions: and those reasons may (at times) be policed by courts or other agencies. These reasons are supposed to be expressed in written records and are required to be responsive to complaints or comments coming from those subject to agency action. And rules or adjudications issued by an agency are supposed to be closely related to the written records of its proceedings. Agencies are, as well, subject to political controls: their budgets can be slashed, their jurisdictions stripped, their leaders fired. So, they are subject both to reason and to arbitrary (willful) control. In these respects agencies face a higher burden of justification than do legislatures. Finally we reach the courts. Judges are generally highly insulated from political accountability though not completely so. They are usually required to give reasons or justifications for their decisions, and the reason giving process is regulated both internally (by other judges, either by higher courts, or by other courts who pay greater or lesser deference to their rulings) or externally by those who do or do not comply with judicial orders or, more generally, with judicially interpreted law. As with agencies, the justifications offered by courts are supposed to be closely tied to the proceedings leading to the decision. But unlike administrative agencies, courts are generally required to provide open and timely trials and to furnish elaborate procedural rights to the parties before them. And their decisions are subject to appeals to higher courts. In these respects the justificatory burden on courts is higher than that for administrative agencies. Folk democracy, so far as I have sketched it, rests on the supposition that political authority properly rests, directly or indirectly, with the people. If power is to be exercised other than directly it must be understood as delegated by the people in some sense. Folk democracy makes no claim about how much delegation can be justified; it says only that,when authority is delegated to elected or unelected officials, there is an expectation of justification or reason giving in return. In that respect, folk democracy embodies a requirement of accountability in the sense that it demands that exercises of delegated powers be justified to those subject to them. 12

Reason giving is an expression of respect: to be required to give reasons for a decision is to recognize the moral claims of citizens to respect as autonomous agents. At the same time, folk democracy insists on reserving a vital kernel of authority to the people: the power to remove officials from office (directly or indirectly) without any explanations given or required. What kinds of reasons are required from those exercising delegated powers? Let s distinguish between reasons directed upwards toward others agents who wield delegated power and reasons directed downward toward those whose powers have been delegated. Folk democracy is especially concerned with the latter. Downwardly directed reasons must explain why people ought to respect a decision and do what is required to comply with it or bring it about. Actions need to be justified as appropriately respecting the decisions of the people, where the notion of appropriate may require presenting the action as authorized by direct or indirect popular delegations of authority: perhaps contained in statutes or in plausible interpretations of electoral results; or perhaps embodied in the constitution or in some plausible interpretation of it. Typically such reasons are directed to showing that the officials had the authority to take the action, that the action was reasonable in some (weak or strong) sense, and that the action did not needlessly trample on individual interests. Reasons of this kind aim to articulate views that each person, acting disinterestedly, could reasonably accept as her own, or at least as reasonably authoritative for her. Though of course actual people may not be able to accept or even understand them. There is variation in reason giving practices across institutions and from one polity to another. Legislators are expected to give reasons to the people (explaining why they are entitled to take the action in question or, more commonly, why they deserve to be reelected.) as well to other officials (spelling out what is required or expected of them). Agencies have to explain why their actions are authorized in statutes, consistent with constitutional norms, and should be permitted to stand by courts. And courts have to explain why their own commands are legally required under democratically formulated laws and sometimes explain to other actors why their apparently attractive policy choices are actually illegal (if they are). 13

There is cross national variation as well: in the UK, acceptable reasons offered by a court or an agency must be limited to fairly literal interpretations of acts of parliament or to common law doctrines insofar as they do not conflict with statutes. In the US, courts can also draw authority directly from the Constitution, which is thought to be a kind of popular expression by the people acting in what Madison called, their highest sovereign capacity (as well as employ the wider range of interpretive strategies which arise from its two level law). To varying degrees many postwar European states permit their constitutional courts to reference the written constitution, and permit their ordinary courts to refer to other, transnational, sources. But of course all of these sources require interpretation and so one expects that courts and agencies will not mere point to a source but give an account of its meaning for the present application. According to the folk democratic understanding there is an increasing democratic deficit as one moves up chain of delegation toward courts and away from the people. At the same time, folk democratic theory implicitly recognizes a kind of deliberative deficit that increases as one moves in the opposite direction. It sees in the exercise of delegated authority a requirement of accountability or justification which, in turn, requires that institutions exercising deliberative powers have adequate deliberative capacities to discover genuine interests, seek to balance those interests justifiably, and to present public justifications for their actions. 17 Folk democracy evidently has a deliberative element: officials exercising state authority are required to present justifications for their actions. But this is a weak deliberative requirement. I distinguish giving reasons or justifications for coercive actions from deliberative 17 In some ways folk democratic theory resembles consent theories, for example, which see delegation as unjustified unless grounded on some kind of popular consent, real or hypothetical. What consent theories have in common is that they see delegated authority as somehow defective relative to authority directly exercised by the people, in needing further justification. This justification can be provided legalistically where the authorities show that their actions are justified under the terms of the consent. Or justification may be provided by showing how official actions tend to be in the public interest by, for example, taking advantage of specialized knowledge or simply being more intelligent. Such delegations may be necessary or advantageous in some ways, but it is always possible that the rulers might depart from what was consented to and pursue their own projects instead. Agency problems are endemic to consent theory as they are to folk theory. Indeed, the most rigorous consent theory (Rousseau) regards the agency problem as so severe that no delegation of legislative power is admissible. 14

activity aimed at deciding what to do. Reason giving or justification is often directed externally to an outside audience whose members are entitled to an explanation, after the decision, for why they should submit to some asserted authority but who are not or cannot be included in the deliberations. This justificatory the focus is the foundation of Habermas s and Rawls s theories. Deliberation, in the sense which I pursue in this paper, however, is supposed to be practiced by those involved in making a decision and who are to engage in practical reasoning about what action to take. It is directed to ensure that actions are actually taken in light of reasons. Reasons are given to others who are in positions to make or influence the decision; they are directed internally in this sense. In internal deliberation it is to be expected that when making a collective decision people should present and listen to reasons from one another. They should be willing to alter their views about what the group should decide when presented with persuasive arguments. Internally directed deliberation giving reasons for prospective actions to co-deciders ought normally to produce reasons that can be given externally as justifications (ex post) to outsiders. We generally expect decision making practices to be transparent to those outside so that others can offer timely advice and argument. There may be, in some cases, a degree of permissible divergence between internal reasons and externally directed reasons. 18 In institutional situations requiring secrecy or dispatch, it may be permissible for decision makers to act non-transparently. But even where this is not the case there may be good reasons for internal deliberations to be confidential. If arguments must be presented immediately in public settings to an external audience there may be a tendency for deliberators to play to that audience: to harden their own stances out of pride or vanity in order to protect their public reputations for steadiness and consistency. The development of public reputations in this way can interfere with 18 This is discussed in the context of constitutional courts, which often choose to issue a single opinion for the court and refuse to permit the publication of multiple opinions, such as dissents or concurrences. John Ferejohn and Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, University of Texas Law Review, vol. 82, no. 7: 1705 1736. 15

the give and take of internal deliberation. 19 For this reason decision making bodies sometime seek to close their doors and deliberate in private as did the Framers of the US Constitution in Philadelphia in 1787, as modern juries do today, as executive branch agencies often do, and as many collegial courts do as well. I don t think this consideration undercuts a transparency norm but it may limit its application to certain institutional settings as it suggests that achieving transparency may entail costs in internal deliberation. Reasons given to outsiders ought normally to be reasons that insiders endorse (even if those may not be precisely the reasons that drove the decision). But perhaps sometimes the internal deliberative process itself should be screened from direct observation from the outside in order to facilitate (internal) deliberation. 20 How and when this is permissible is a matter for deliberative democratic law. A law based on folk democratic theory puts institutions and practices of voting and elections as its first order of business. Democratic law would need to be occupied with the choice of an electoral system, including any ancillary choices (such as district size, apportionment, and ballot design) that any particular electoral system would have to make. It would also be concerned with other things that could bias electoral choices campaigns and campaign finance, ballot forms, hours and days of voting, ease of registration, implicit or explicit public subsidies or other advantages provided to incumbent representatives, regulation of political parties and other organizations, etc. All these are in fact traditional topics in the Law of democracy. Folk theory also insists that the primary regulatory standard to be applied would be the Constitution s equal protection clause though it could incorporate other constitutional (and statutory) resources as well. Concern with equality would also justify a focus on vote dilution 19 John Ferejohn, Secret Votes and Secret Talk forthcoming in a volume on Public Secrecy edited by Jon Elster, 2013 20 There may be another reason for the distinction between external and internal deliberation. Suppose, for example, that the Roman Catholic Church is debating internally about what position it might take on a public issue. Internally we may suppose that the members of the Church share a comprehensive view and may wish, on that basis, to adopt some position on the issue. But if the church s position is to have a chance to prevail in the wider public it needs to be argued for by public reason and not in terms of the internal reasons that may have led the church to adopt the position during its own deliberation. 16

and possibly justify regulation of the distribution of powers inside of the legislative body. Folk democracy would also be concerned with regulating delegations of authority and especially assuring that statutes delegating authority to courts or agencies provide standards for justification. In short, folk democratic theory seems able to describe much of the subject matter of democratic law. Folk democratic theory also has implications for the regulation of the more deliberative institutions and in particular for the exercise delegated powers: it would support a strong nondelegation doctrine, either by devising a legal subsidiarity principle or else by imposing strong criteria of justification. I think it would suspicious of judicial efforts to restrict the authority of institutions closer to the people and might on that account, limit judicial powers to override administrative and legislative decisions. I think it would also be very suspicious of judicial attempts to restrict the authority of popular initiatives, judicial elections, recalls and referenda. Folk democracy would, in these respects, be inclined to limit the capacity of more deliberative institutions to check and qualify those judgments, in the name of respecting the popular judgments of a majority. 3. Majority rule: Preferences or Interests Deliberative theorists sometimes oppose their views to aggregative or majoritarian conceptions of democracy. Majoritarian conceptions of democracy cannot easily avoid sharp conflicts between the (positive) right of the people to govern themselves as they see fit and the (negative) liberties for individual citizens to speak and pray freely, to be entitled to equal treatment, and due process, etc. The attempt to regulate these conflicts by imposing a constitution is a common means to attempt a reconciliation between these positive and negative liberties. But, constitutions tend to be fairly open textured and so disagreements about constitutional interpretation permit the original conflicts to resurface in a new guise. Whenever a court actually strikes down legislation the fundamental conflict reappears in its rawest (countermajoritarian) form. 17

There are two kinds of majoritarianism: one kind is normative: a proposition that whatever a majority of the people endorses ought to be law. The second variant is a kind of proceduralism: A procedural majoritarian is committed to the idea that some proposition is a law if and only if it is agreed to according to a duly constituted majority based procedure for making laws. Such procedures typically use majority rule at various points, such as in nominating and electing representatives and in passing laws by legislative majorities. 21 Such a constituted procedure would not generally enact the same laws as would be required under the normative majoritarian standard. Still as long as the choice of procedure itself is itself justifiable on majoritarian terms, the procedure can be regarded as majoritarian. On neither account is there a requirement that the lawmakers (or citizens) engage in any kind of deliberation. As long as the procedures for approving legislation are respected it is simply that fact that a majority (of the citizens or of the duly constituted legislature) has assented to the law according to those procedures that are in place that gives a law its force. There seem to be (at least) three grounds for criticizing majoritarianism: first, certain propositions, on account of their content, may not be eligible to be laws no matter how many people endorse them. Second, if it is understood that only votes matter for determining the law, laws will not be based on reasons in an appropriate way: even if each person forms her preferences on the basis of reasons she has, X may be voted by a majority even though, if each person were to take account of all relevant reasons, X would not receive a majority (either of the population or the legislature). Third, if laws are to be determined by votes people may be unwilling to deliberate with others: to present reasons for and against X and to be willing to alter her own view if is presented with sufficiently good reasons. In various ways each of these 21 The term proceduralist has been appropriated by different sides in debates in democratic theory. Majoritarians sometimes argue in favor of a view that a proper democratic theory must depend only on voting procedures such as the use of majority rule. As Xenophon said (disparagingly) of the Athenian democracy: the people can decide whatever they want. Some deliberativists also claim to be proceduralist but the procedures for them are not restricted to the voting rule but on the procedures regulating deliberative practices. A deliberativist might agree with Xenophon s critique of the Athenians on the ground that their debate (in the ekklesia) failed to satisfy minimal procedural conditions for deliberative speech. Indeed, the debate that Xenophon described was marked by the use of threats to intimidate opponents. 18

criticisms illustrate a core problem with majoritarianism -- that people inappropriately take preferences they have, whatever they happen to be, to be sufficient reasons for voting and (thereby) making laws, and this disposition blocks law from reflecting the kinds of reasons that should count for making laws. Deliberativists also draw a sharp distinction between deliberative speech and bargaining. 22 They don t necessarily reject bargaining, even in public or legislative settings, but they restrict its normative force, arguing that it rests on a liberal conception of the person, which presumes that persons have fixed preferences. Simone Chambers, for example, positions legislative bargaining within majoritarian practices: Voting-centric views see democracy as an arena in which fixed preferences and interests compete via fair mechanisms of aggregation. 23 The idea that bargaining approaches to legislation take preferences as fixed and incorrigible is part of the deliberative critique of what they call the aggregative view of politics, which regards lawmaking as preference aggregation. That preferences are taken to be fixed is said to limit the capacity of bargaining to reach consensus. When bargaining fails to reach consensus, which it typically would if preferences really are fixed, the resulting law represents merely the preferred position of the majority. Finally, a fixed preferences critique also underlies the rejection by deliberativists of strategic uses of argument. If we think of preferences as fixed and selfish it is hard to think well of strategic deliberation. But, what if everyone has common interests but different views about what the pursuit of these interests require? In that setting it is possible to show that generally, even purely public interested agents will sometimes find it rational to mislead or conceal, in the interest or reaching a collective decision that is best for all. 24 22 Jon Elster, The Market and the Forum in Foundations of Social Choice Theory, (Jon Elster and Aanund Hyland, eds.), Cambridge: CUP Press 1986. 23 Simone Chambers, Deliberative Democratic Theory, Annual Review of Political Science, Annual Reviews, 2003. P. 308. David Austen-Smith and Jeffery Banks, Information Aggregation, Rationality, and the Condorcet Jury Theorem, American Political Science Review, vol 96 (March) 1996, 34-45. 24 David Austen-Smith and Jeffery Banks, Information Aggregation, Rationality, and the Condorcet Jury Theorem, American Political Science Review, vol 96 (March) 1996, 34-45. 19

Deliberativists are right to deny that preferences are to be taken to be fixed but this does not necessarily require either that majority voting or bargaining have no significant place in democracy. We certainly need to make room for elections and voting in democratic theory, even if the decisions they produce are sometimes flawed, while, at the same time supporting institutions and practices aimed at improving the content of democratic choices. The deliberative critique seems overdrawn in two senses. First, by rejecting decision making based on voting it seems to consign actual democratic practices to a kind of purgatory. It seems to me however, that any plausible democratic theory must find a way to accept elections and voting as modes of deciding some things, even if that amounts to cutting off deliberations. It may simply not be possible to end certain deliberations without recourse to voting, without either emasculating the government or else cutting out a robust role for the people in participating in decisions that affect them. It is obviously important for a government to be able to make decisions maintaining social peace and stability; but in a diverse society it may be very hard to agree on particular policies directed to those ends. This is a practical problem it is, in my view, THE practical problem of government and I don t see that is possible to ignore it. 25 And I take it to be equally important in democracy for there to be some firm sense in which the government depends on the people. Second, those who are called aggregativists need not adopt the view of preferences attributed to them by deliberative theorists (though most of them probably do). While it is true that there are (many) economists who do understand preferences as fixed in the senses outlined above, the fixed preferences assumption is unnecessary for economic analysis. 26 Nor is it 25 John Ferejohn, Institutions and Deliberative Democracy, Designing Democratic Institutions, Edited by Ian Shapiro & Stephen Macedo, New York University Press, New York and London, 2000, pp 75-104. One could of course regard those decisions made by the application of aggregative rules as mere modus vivendi which may have less normative significance than deeper agreements reached through full deliberation. Though, if a modus vivendi is the only means of stopping carnage it is hard to see that it lacks moral oomph. 26 Some economists claim to follow Hume s idea that reason can only be a slave of the passions and is impotent in providing independent motivation for action (however beneficial that action may be). See David Hume, Treatise on Human Nature, L. A. Selby-Bigge (ed.), 2nd ed. revised by P.H. Nidditch, Oxford: Clarendon Press, 1975, p. 415. But Hume s ideas seem to permit a role for reason in enlisting (weak) passions in the service of regulating more strongly felt passions. We may have a weak passion for our future well-being and strong passion for present consumption. Hume seems to permit reason to play a role in mobilizing the weak passion to control the more urgent one. Once it is admitted that passions are conflicting in this and other ways, there seems to be plenty of room for reason to play an important role in Humean practical reason. 20