Ilya Somin – a GMU colleague from over in the law school and a blogger at the Washington Post‘s Volokh Conspiracy – has written a must-read take-down of Nancy MacLean’s fictional work, Democracy in Chains. Below are some slices, but do read Ilya’s entire essay.
On one issue, however, she [MacLean] is largely correct: it is indeed true that libertarians want to impose tight limits on the power of democratic majorities. Calling this agenda a “stealth plan” is, of course, ridiculous. It is much like saying that pro-lifers have a “stealth plan” to restrict abortion, or that Bernie Sanders has a secret agenda to expand government control over the economy. Skepticism about the power of democratic majorities has been a central – and completely open – feature of classical liberal and libertarian thought for centuries. Most of the Founding Fathers, John Stuart Mill, Alexis de Tocqueville, and many others held such views. It was Thomas Jefferson, writing in protest of the Alien and Sedition Acts, not James Buchanan and the Koch brothers (the central villains of MacLean’s story), who wrote that “[i]n questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Regardless, MacLean tries to use libertarians’ suspicion of unconstrained democracy as a cudgel with which to deligitimize them and prove that they are outside the bounds of reasonable political discourse.
Yet libertarians are far from the only ones who want to chain down democracy. Consider a group MacLean may have some sympathy with: mainstream modern left-liberals. Are they populist champions of the will of the people? Do they want to empower democratic majorities to rule as they see fit? Pretty obviously not. In some ways, the left wants to put even more chains on democracy than libertarians do. That does not mean liberals are nefarious champions of oligarchy. Far from it, in fact. But if you agree with all or most of the left-wing critique of unconstrained democracy, that gives you good reason to accept significant parts of the libertarian critique, as well. At the very least, you cannot just dismiss it as a smokescreen for oligarchy.
It is ironic that MacLean falsely accuses of James Buchanan and other libertarians of opposing Brown v. Board of Education, while also attacking them for wanting to put tight limits on democracy. A consistent majoritarian democrat should be against Brown. After all, that decision struck down important public policies enacted by elected officials and strongly supported by majority public opinion in the states that adopted them. In fairness, those states were not fully democratic because they denied the franchise to African-Americans. Had blacks been able to vote at the time, Jim Crow segregation would surely have been less oppressive. But a great many segregation policies would likely have been enacted nonetheless, since blacks were a minority and the white majority in those states was strongly racist. The Brown case itself actually arose in Kansas, where blacks did have the vote, but still lacked sufficient political clout to prevent the white majority from enacting school segregation.
Strong judicial review is far from the only way in which many on the left seek to constrain democratic majorities. An important strain of left-liberal thought also advocates concentrating extensive power in the hands of bureaucratic administrators and other experts. Because the public is often ignorant and easily misled about complex regulatory issues, leading scholars such as Cass Sunstein and Supreme Court Justice Stephen Breyer argue that many policy decisions should be left in the hands of experts who enjoy a substantial degree of insulation from the pressures of the political process. I look forward to reading Nancy MacLean’s book about how Breyer, Sunstein, and others with similar views are shills for would-be bureaucratic oligarchs!
The more issues are under the control of democratic government as a formal legal matter, the less the voters are actually able to monitor what is going on. As James Madison put it in Federalist 62, “[I]t will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
By contrast with most of the left, libertarians are much more wary of delegating power to bureaucrats and experts. If they had their way, government would do a lot less than is currently the case. But a much higher percentage of the government power that remains would be subject to tight public control. Moreover, a smaller, simpler government would be considerably easier for voters to monitor. In this important sense, libertarians are actually more supportive of democracy – defined as public control over government policy – than many on the left are. The government that governs least may not be best in every way. But it is likely to be more meaningfully democratic than one that regulates and controls as much as the modern state does.
Instead of demonizing each other, we should recognize the considerable common ground that exists on the need to constrain majoritarian abuses in many areas. You don’t have to be a libertarian to recognize that completely unchained democracy is likely to be a menace. That recognition might help us have a more productive discussion on the issues where we differ.