The Promise of Human Rights. Jamie Mayerfeld
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in which we not only pledge our own efforts to that end but hold one another accountable for doing the same. Recognizing our imperfection, we employ one another to correct our errors, but external oversight does not relieve us of the burden of striving to act and judge as justice requires. When Senator Arlen Specter voted for the 2006 Military Commissions Act despite his belief that its denial of habeas corpus to military detainees “was patently unconstitutional on its face,” stating as his excuse that the Supreme Court “will clean it up,” he was led by a false constitutional morality to violate his constitutional oath of office.33 Waiting for the Supreme Court to clean up our mess was never Madison’s idea of checks and balances.
Madisonian Democracy
Democratic theorists often locate the value of popular government in the empowerment of the people’s will. To let the people decide public policy is to realize the good of self-government or public autonomy. Madison takes a different approach. On his view, popular government is an indispensable means to justice. Because it is not sufficient, however, “auxiliary precautions” are needed. He supports a combination of popular government and other institutions that are collectively needed to secure justice. Constitutional democracy is the term we now use for this arrangement. (Of course, there are also non-Madisonian arguments for constitutional democracy.)
We can agree with Madison that the purpose of popular government is to secure justice without binding ourselves to his own conception of justice. For example, we can insist more clearly than Madison that justice requires equal universal adult suffrage. (The mature Madison moved toward endorsement of universal adult (white) male suffrage, but continued to show some sympathy for the argument that only property holders should be allowed to vote for the upper house.)34 To deny some adults an equal vote is an affront to justice, because it denies their status as equal members of the community, entitled to an equal voice. Principled support for equal universal suffrage can be fitted into a “Madisonian” conception of democracy. It is different from saying that the purpose of popular government is the realization of the people’s will, because (1) equal universal suffrage forms only one element of the larger end of justice, and (2) the purpose of political power, in whosever hands it is placed, is to secure justice.
Why not say that the purpose of popular government is public autonomy or the realization of the people’s will, regarded as an end in itself? I believe that references to public autonomy or the people’s will obscure the central fact that popular government, like all forms of government, is a system of rule. Popular government is not continuous with individual autonomy, because some people are obligated to obey rules they do not in fact agree with. The stakes are high, every decision produces winners and losers, and the potential to harm others unjustly is always present. It is hard to believe that choice is a value when the choice being exercised affects the vital interests or decides the fate of other people. What is valuable is the avoidance, by means of the correct choice, of injustice or misfortune.
If we are honest, popular government always entails rule over others.35 The use of the term “self-government” as a synonym for popular government is enormously misleading.36 Because decisions must be made, minorities must defer to majorities. There is not enough role-switching to lend this practice the semblance of self-government even over the long term. Decisions are continually made regarding specific groups of people—farmers, factory workers, teachers, welfare recipients, homeless people, drug addicts, and so on—by people who do not belong and do not expect to belong to the affected categories. Even if we grant the fiction of a collective “self,” there is a vast range of policy making that still cannot fall under the description of self-government. It is not self-government when countries undertake foreign policy, or adopt policies affecting children, or future generations, or animals, or the rest of nature. In an interdependent world, moreover, externalities loom large: our decisions affect outsiders even when the outsiders do not enter our thinking. A domestic energy or industrial policy, or lack of such a policy, may exacerbate global climate change, causing catastrophic floods and droughts elsewhere in the world, or the loss of agricultural lands and densely populated areas, even entire countries, to rising seawaters. Domestic deliberations on such matters cannot be termed an exercise in self-government. And this is not even to mention the effects on children, future generations, animals, and the rest of nature.
When we realize that popular government is not self-government, we ought to be nervous about its legitimacy. What gives the people the right to govern if their decisions reach far beyond themselves? The answer is that popular government offers necessary protection against the unjust and unwise use of power. Once we have enunciated this thought, however, we are reminded that the people can abuse power, too: a majority can mistreat a minority, and a community can mistreat outsiders. Additional protections are needed to forestall these dangers. We might say that the “auxiliary precautions” are the security the people must offer in exchange for their necessary but also dangerous exercise of political power.
This is a nonvoluntarist conception of democracy. The point of popular government is not to realize the people’s will (whether taken as given or refined through deliberation) but instead to foster just and wise policy. Democracy is a system designed to ensure the responsible exercise of power by means of checks and balances, with popular participation through majority voting serving as the most important check, but not the only one. Justice and the common good, not self-interest or group interest, should determine the political choices of citizens and officials alike. Of course, citizens should be on guard against policies that would cost them unjustly; our talent for identifying such policies is one of the principal reasons for democracy. However, we should always strive to distinguish between those personal costs that justice forbids and those that it permits or even requires. We may advocate our interests as far as justice and the common good permit, but no farther. Virtuous citizens in a democracy strive to honor the distinction and help one another do the same.
A venerable tradition in democratic theory has sought to reconcile the concepts of popular government and justice. The true will of the people (on this view) is that which can receive everyone’s reasonable consent, and to pass such a test is to comply with the demands of justice. Rousseau’s Social Contract is a classic statement of this argument, but it echoes among many heirs to the social contract tradition. The emphasis that democratic theorists often place on reciprocity as a norm of collective decision making—rotation of office, a general will that abstracts from the particular will, public reason, orientation toward consensus, inclusive deliberation—may be seen as an attempt to yoke collective will formation to the demands of justice. I agree that we should support institutional devices that steer public deliberation toward justice (indeed, that is what I am arguing). I think it is wisest, however, to keep justice analytically distinct from the popular will. We otherwise run the danger of misrepresenting the people’s will to make it conform to justice, or redefining justice to fit the people’s will. The strain is evident in Rousseau’s argument. We all know that the actual will of the people easily diverges from justice. If we turn from actual to hypothetical consent—that is, what it would be reasonable for the people to consent to—it is difficult to define “reasonable” without importing norms of justice (reached independently of the people’s will). When we recall that justice also governs our treatment of those not included in the deliberative process—foreigners, children, future generations, animals, and the rest of nature—it becomes still harder to posit a conceptual identification of justice with the popular will.
One possible response to this line of argument is that since justice is a contested concept, we must refer the question of its meaning and application and weight relative to other values to a process of political deliberation. Such a view (though widespread in contemporary political theory) carries epistemic modesty too far. It does little good to pretend that we (you and I) know nothing about justice. Even though our understanding can be improved—and public debate is necessary for its improvement—we already know a great deal. We know that justice requires respect for human rights (under a conception not too distant from that of the Universal Declaration of Human Rights), respect for the rights of animals (implying, at a minimum, the prohibition of systematic cruelty to animals undertaken to maximize economic profits), and abstaining from policies that consign future generations to conditions of life significantly worse than our own. (Of course,