useless question

[calimac]

First time I've ever seen an exit pollster outside my polling place. She had a table with a pad of question forms, a box of pens, and another box to drop the completed questionnaire in. There were about 20 questions, divided among voting intentions, general political views (the toughest one was "How much do you trust the government to do the right thing?"), and personal characteristics (it's typical that I can't recall the exact answer to "What is your annual income?").

The form was evidently intended as generic to the state, for though it gave the names of the gubernatorial candidates (not a useful question for predicting the outcome: this one's pretty much in the bag), for Congress the options were "a Democratic candidate", "a Republican candidate", "other", and "did not vote". But somebody was not paying attention to our state election laws, as because of our top-two runoff system, this district has two Democratic candidates for today's election. A special card the pollster had confirmed it: if you voted for either one of them, choose option 1; this makes options 2 and 3 unusable here.

That's not only pointless but useless: the race between those two is very tight and it would be useful to have early data on voters' intentions. Certainly the only live phone calls I've gotten this election have been from polite people supporting one or the other of those candidates. (The recorded calls have been the usual selection of interestingly star-studded: Kevin Johnson and Michelle Obama on the same day, for instance.) When the caller for the candidate I did not support asked me why, I answered, which I suppose makes me partly responsible for the subsequent flood of mailers from that candidate trying to counteract that impression.

Here's something else silly: a screed against the maxim "If you don't vote, you have no right to complain." The argument comes perilously close to replicating, in far loftier tones, the "gotcha" of my trollish little brother, who likes to point out that the maxim isn't true because First Amendment. But the maxim isn't about legal rights, or even (in this loftier version) Lockean moral principles. Perhaps it should better be phrased as, "If you don't vote, you shouldn't complain about the results you get." But Mr. Lofty isn't interested in improving the phrasing, he's out to condemn the maxim-sayers for "assert[ing] that you, O virtuous voter, have the right to revoke that grant [of "fundamental human rights"] to someone because they didn’t value voting as highly as you do."

Well, yes we do have that right to revoke a grant. The grant that we have the right to revoke is the grant of a right to have your complaints heard. By the etiquette of public discourse, if by nothing else, voters have a right to a respectful hearing of their views to a degree that those who don't take the trouble to vote, but who do have the time and energy to bitch about the results, don't have.

And that's all it means. And anybody who doesn't want to listen to me on this, doesn't have to do that, either. Even though I voted.

Comments

[whswhs.livejournal.com]

The Constitution was basically formed by the consent of the thirteen originally states, and of the thirty-seven states that have sought admission since then. That does not by itself establish "consent of the governed"; rather it refers it back to the legitimacy of the state governments. And that legitimacy itself seems problematic, if it's meant to be founded on the consent of the governed.

I'm referring, in this, to the ordinary notion of consent that applies in relationships among individuals. Let us say, for example, that you have A, B, and C in a room somewhere. A proposes group sexual activity. B says no. So A proposes that they vote on it, and A and C both say yes. Then they engage in the activity, which includes B. Has B consented?

It seems in this case that whether B says no ("votes against"), or remains silent, or says, "It's ridiculous even to propose to vote on this and I'm not going to!" you do not have actual consent. If B refuses to "vote," A and C cannot say, "Well, we offered B the chance to vote." There's been a lot of talk about affirmative consent lately; B's silence, or B's not voting, cannot meet the standard of affirmative consent.

Now, it's at least not part of the proper business of governments to rape people (which is not to say it's never happened!). But governments do dispose of people's property, their liberty, and their very lives; they can commit violations every bit as bad, or worse. It's problematic ethically that they do so without meeting the standard of informed individual consent. But the "consent of the governed" that is often spoken of seems to be consent only in some ideological sense that is not meant literally, any more than the older theory (which Locke attacked in his first treatise of government) that the king's authority is that of a father over his children is meant as literal fatherhood.

I do think that there may be valid answers to this; I don't think the standard of informed consent leaves us no option but anarchy. But it's a difficult question in political theory; Randy Barnett wrestled with it in the first part of Reclaiming the Lost Constitution and I don't think he ever pinned it to the mat, though he's impressively intelligent and I find a lot of his constitutional analysis persuasive.

But there are many people who take elections and majority rule by themselves as proof of legitimacy and indeed as criteria of legitimacy, under the head of "consent of the governed." And they can't be that. Under ordinary circumstances one person can't consent for another.

[kalimac.livejournal.com]

Interesting that you should use the example of A through C's sexual encounter to demonstrate the tyranny of democracy, because it actually affords an opportunity to demonstrate the opposite. The horror of your example is the imposition on B's personal autonomy. So what should happen in real life but a whole sequence of judges establishing same-sex couples' right to marry, specifically stating that their personal autonomy and rights trump measures denying it, no matter how large the majority against it.

The point is that some matters are morally and logically subject to majority rule and some are not. An equally extreme example on the other side would be letting everyone decide for themselves whether green means go and red means stop or the other way around. If we did, there'd be far more accidents and immense congestion so that nobody would get what they want or where they were going, so there has to be an authority establishing the rules - and that one wasn't even voted on, so far as I know.

A wise democracy knows the difference.

[whswhs.livejournal.com]

(a) I'm familiar with the analogy of traffic laws, but I don't believe it actually shows what it is commonly taken to show and what you are taking it to show. I think that conclusion reflects a failure to analyze the actual logic of the argument.

I'm sure you know the maxim that my liberty to swing my fist ends where your nose begins, which I think expresses a basically sound idea. That same principle applies to my scenario: A and C's liberty to pursue sexual pleasure ends where B's body begins. And in exactly the same way, X's liberty to drive ends where Y's bumper begins. Traffic laws are not a new moral or legal principle; they're simply a formalization of the basic restriction that makes liberty possible, under the conditions of common property that obtain on the roads. (The owner of a private road would have the right to set their own traffic rules, just as a movie theater or a restaurant can have rules for lining up, seating, and the like—traffic rules for pedestrians.) Voting is a reasonable mechanism for arriving at rules within the constraints of the basic right to liberty and of government by the consent of the governed; it has no validity apart from that and cannot justify setting those principles aside. The majority is not entitled to decide that anything whatever is a proper subject for majority rule; if it were, A and C could vote to decide that their sexual conduct and B's rights to autonomy were subject to majority decision.

Democracy, as I understand it, and as the term was used by theorists from Aristotle to Madison, is unlimited rule, accompanied by the right of majorities to govern in their own interest, without regard for the good of the whole people or for the rights of individuals. Constitutional government is a restriction on democratic mechanism. The case of same-sex marriage illustrates this. The California constitutional amendment banning it was passed by majority vote, and when the courts started hearing appeals against it, many people, including some of my out-laws, started complaining about the undemocratic behavior of the courts in overruling the majority; I agree that what the courts were doing was undemocratic, but I think that that's a good thing and one of the primary responsibilities of the courts. (Hamilton spelled out the whole theory of this in one of his articles for the Federalist, actually.)

(b) As I understand it, state traffic laws are enacted by state legislatures, which are elected. So they do seem to have been voted on.

[kalimac.livejournal.com]

No, I think you're still illustrating my point. The system restrains majoritarian democracy when it infringes on personal autonomy, as in marriage laws or your hypothetical sex example; the system imposes majoritarian democracy when the lack of it would infringe on personal autonomy - in the case of traffic laws, the right for everyone to get where they're going in the most reasonable way.

I don't believe that state legislatures voted on red/green traffic lights in the sense that the options of green/red or orange/purple or whatever were also on the table. And if they had, it would have been different in different states, as we in fact see with other traffic laws like the way speed limits work. I was speaking of the making of the choice as to which colors mean what, and that was a technical decision made by engineers. (A bad choice, actually, because color-blindness.) Though the legislatures may have codified it, they didn't make the choice.

[whswhs.livejournal.com]

I think you are still not addressing the difference between "democratic mechanisms within a system that is legitimized on some other, more fundamental basis" and "democratic mechanisms as a source of legitimacy." It does not seem to me that someone who regards a particular political system as illegitimate, and refuses to vote on that basis, loses the right to object to what the system does. The contrary position seems to be a rhetorical device for silencing fundamental dissent.

Of course, in the United States, we don't have a lot of fundamental dissent. But that's actually a reason for accepting and tolerating it. And there have been less fortunate states where a huge part of the population were in fundamental dissent; indeed the history of the United States as a polity begins with such a situation.

However, this is getting into more fundamental political theory, and that can go on forever. And since I am not myself taking the position that the Constitution of the United States is fundamentally illegitimate, I have no personal stake in the matter.

[kalimac.livejournal.com]

Once you brought up the definition of consent, with the example of the sex lives of A through C, it shifted the discussion from the right to express non-consent to the question of the legitimacy of the thing itself that consent is being asked for. My previous two comments were written on that basis.

But, OK, we can go back again. Perhaps we could limit the original maxim to meaning that not voting should obviate complaints that the wrong candidate on the ballot won. If you don't like the winner's policies, you can say "At least I didn't vote for him" with a lot more force if you voted for the other guy than if you didn't vote at all. I think that's the real point of the maxim.

But you mean disagreement with the system entire rather than the specific winner. (Your phrase, "You consent to be governed by the winners of this election" is a bit ambiguous here.) Such a person could vote for, or if necessary, run as, a candidate with a platform to change the system. Or, if that seemed impossible, engage in revolutionary activity.* The Weathermen certainly did not consent to be governed by the winners of this election, and the question of whether they voted or not seemed kind of beside the point.

*Which the Declaration of Independence does authorize in cases of extremity - the catch being, who decides if it's extreme enough? In that case, though, it was the elected representatives of the entire voting population, not a self-appointed coterie in secret cells.