The Meaning of Democracy
My topic here is a fairly amorphous one. I want to lay out a tentative case for the claim that democracy is in decline.
But first, what do we mean by democracy? People simply do not agree about what this moral abstraction—the concept of democracy—does and does not cover. Some use it in a far broader, more morally pregnant sense than others do, and there’s no precise test for deciding who is correct.
Let me make this initial point in this way. “When I use a word,” said Humpty Dumpty to Alice, “it means just what I choose it to mean.” Likewise, many people, such as the Nobel laureate Amartya Sen, use democracy to mean a great deal more than majoritarian decision-making. For them describing a country’s system as democratic carries with it an additional assertion that the decisions taken have reached a certain level of goodness or acceptability or rights-respectingness. In other words, for them democracy and democratic do not simply refer to how decisions are made, they also (to some extent) refer to the quality of those decisions.So a country that, let us imagine, tramples on individual rights, or adopts regulations that severely disadvantage a particular religion, or nationalises all property, does not get to be called a democracy. Democracies, on this understanding, include only those places where the decisions made are good ones, or at least not terribly bad or wicked ones.
People who use democracy in this morally pregnant way want it to tell you two things: one about how a decision was made and another about the goodness or appropriateness of that decision. Democracy, on this understanding, means both a statement that decision-making is being done by some majoritarian process as well as a claim that the decisions pass a certain moral threshold.
This morally-laden understanding of democracy is not, in my view, a desirable one. It should be possible to say, “Country X is a democracy, but one that now ignores many individual rights and tramples on various freedoms.” We need to keep separate the issue of how a country makes its key decisions, on the one hand, and on the other whether we think those decisions are generally rights-respecting or freedom-protecting or morally palatable—even if you, and I, think that most of the time, overwhelmingly perhaps, democracies do not do wicked things, or even that no other decision-making procedure would, on the whole, make better decisions.
Notice how the adoption of a morally pregnant understanding of democracy makes it hard for anyone to claim—as I am going to do—that democracy is in decline. If I point to the European Union, say, and show that decisions are being made by a coterie of unelected bureaucrats, the response can always be, “Well, perhaps, but only when the decision is the right one to further integration or reduce carbon emissions or strengthen monetary union.”
If decision-making is taken out of the hands of the majority only in order to get what is thought to be the right or proper outcome, and the very idea of democracy includes some component of getting decisions right, or achieving outcomes that respect rights, then any complaint about a decline in democracy can be turned into an argument about whether the decisions made by some group other than the majority were, or were not, in fact the right ones.
You end up arguing about what was decided—namely about outcomes—not about how decisions were made—namely about processes. And that makes it much more difficult to argue that ever more important decisions in the Anglo-American world are not being made on a democratic basis, such as when Californian judges overrule the state legislature on same-sex marriage, say.
I want to avoid all these definitional problems and rather sterile debates about the meaning of democracy. I want to foreclose all attempts to define away the problem. So when I say that democracy and democratic decision-making are in decline, and in need of bolstering, I’m referring to democracy in the thin, unvarnished sense of majoritarianism and counting all citizens as equals and letting the numbers count. People inclined to adopt a more morally laden understanding of democracy should have no difficulties in putting that aside temporarily for the purposes of my argument.
We also need a bit of context. Here’s a simple fact. Not all of the world’s Western democracies start from the same spot when it comes to letting the numbers count. Let’s start with New Zealand and the United States. These two countries make for an excellent contrast. The latter is in some ways the most democratic system on earth. In others, though, it was especially designed so as to put checks and limits on letting-the-numbers-count decision-making. New Zealand can be seen as the flip side of the USA on both counts. In the ways the USA is amazingly democratic, New Zealand is not. In the ways the USA is intentionally not democratic, New Zealand is.
No country on earth has as many elected officials as the USA—from sheriffs, to school trustees, to district attorneys, to electoral returning officers, to coroners, to judges (and in some states that includes the highest judges in the state). Then there’s federalism, which means that decisions about, say, school curricula, are made at the state level (and in some states the county level) not nationally. Or take income tax levels. Each state’s elected representatives set their own state income taxes. Some are high taxing, like New York and California; some are low taxing, like Texas or Alaska.
Here’s a less obvious factor that promotes letting-the-numbers-count democracy in the USA. It’s very difficult there for elite opinion—think of the Harvard Law School common room or the New York Times daily editorial meeting—to capture all the viable electoral vehicles and shut out the majority’s opinion. Campaign finance rules make it possible for people to mount insurgency campaigns against the party hierarchies. Fox News gives an outlet to opinions that wouldn’t make it onto NPR, or the BBC, or the CBC, or the ABC, or TVNZ. And there are all those private research institutes and think-tanks that can act as a counterweight to the startling consensus of opinion in the universities.
And here’s a last point I’ll make on this side of the ledger. The way treaties are entered into in the USA buttresses the democratic credentials of that country. No matter what the President wants, treaties there cannot come into force until they have been passed by two-thirds of the Senate. In the UK, Canada, Australia and New Zealand, the executive, under the prerogative power, can enter into and ratify treaties and conventions with no veto or gainsaying power in the hands of the elected legislature. And, worse, these treaties can then be used by judges to interpret legislation. (Count that as our first indicator of democratic decline.)
Enough of the pro-democracy side of the US ledger. What about the anti side? And here you need to recall that governmental institutions in the USA were deliberately set-up on a checks-and-balances basis, not least to balance and check the views of the majority of voters.
Start with the Senate, a powerful legislative body. This is hardly a majoritarian institution. Unlike in the House of Representatives where the country is divided into more-or-less equally filled districts, the Senate is massively distorted. Some votes count a lot more than others. With two senators from each state, the votes of Californians (with 37 million people) and Texans count much less than those of voters in Wyoming (with 500,000 people) or North Dakota. This is a blatant infringement of counting everyone equally and letting the numbers count.
It is accentuated by the filibuster. This is a parliamentary tactic that allows the blocking of the passage of legislation by talking bills out. Senate rules allow forty of the 100 Senators to do this, as we saw in the recent health care debate. This compounds the already anti-democratic nature of the Senate, though attempts to count up the twenty lowest population states and say their 11 per cent of the population can hypothetically block all legislation in Congress are highly misleading. In real life, due to party politics, the forty filibustering senators will come from far more than twenty states, many of which will also have elected a senator opposed to the filibuster.
I could also mention here the Electoral College used to choose the President in an indirect, filtered way, and how it distorts letting-the-numbers-count decision-making, on occasion even giving victory to the candidate who received fewer votes. But let me instead give as a last example on the anti-democratic side of the ledger the Bill of Rights in the USA. Any justiciable bill of rights that empowers unelected judges to do something they could not otherwise do has the potential to be anti-democratic in nature. By translating political disputes into the language of rights, and asking judges what the proper scope of such rights ought to be, when they can justifiably be limited, and how they ought to inter-relate, these formerly political disputes (which used to be resolved by voting) are turned into quasi-legal disputes (resolved, ironically enough, by voting amongst the judges when they disagree—only the size of the franchise differs).
Think about what a bill of rights is. It’s a document that deals in moral abstractions. It lists a series of vague, amorphous rights—to free speech, freedom of religion, peaceable assembly, and more—at a level of indeterminacy that finesses disagreement. Everyone is in favour of the right to free speech in the abstract. But disagreement arises—between smart, nice, reasonable people—when you ask about where to draw the line when it comes to regulating hate speech, or defamation, or campaign finance rules. (And notice that free speech never means a licence to say absolutely anything at any time.)
Bills of rights hand power to judges at the expense of the elected legislature. They diminish democracy.
Notice something else. A bill of rights is anti-democratic in a stronger way than the US Senate is. The Senate makes it tougher for the majority to impose its will on the minority. It imposes a super-majoritarian requirement on bringing about change. It allows the minority to block the majority, up to a point. It does not, however, allow the minority to bring in changes the majority opposes. Remember, legislation still has to pass through the democratic, majoritarian lower house.
A bill of rights, by contrast, can work to allow the judgments of the minority of voters to trump those of the majority. Provided judges, or a majority of judges on the top court, interpret the bill of rights in this way rather than that, the views of the minority can prevail—on same-sex marriage, on capital punishment, on gun control, on the treatment of suspected terrorists, and so on.
Anyway, that’s a brief accounting of democracy’s credentials in the USA. It is remarkably democratic in some ways while being deliberately designed to be undemocratic in others.
In New Zealand they have almost none of the US-style institutional constraints on the majority. There is no federalism or written constitution, and there is a unicameral legislature.
Yes, from 1990 onwards they’ve had a bill of rights. It’s not a constitutionalised one allowing judges to invalidate or strike down statutes, not least because they have no written constitution in which to embed one. And the doctrine of parliamentary sovereignty runs through the heart of their system. But statutory bills of rights do have reading-down provisions—directions to the judges to do what they can to read all other statutes as consistent with what they, the judges, happen to think is rights-respecting. In the United Kingdom this very same sort of reading-down provision has been interpreted by the unelected judges as allowing them to give statutes a different meaning even when the intended meaning of parliament is clear. In the case of Ghaidan in 2004 the top judges there said that they could read words in, read words out, ignore parliament’s clear intention, do just about anything short of the hokey-pokey.
New Zealand’s judges have been far more sensible. But they have also used their statutory bill of rights to increase their own powers. They have given themselves a power to issue declarations of incompatibility (Moonen); to read back in a remedies provision even though one was specifically taken out to get the bill of rights enacted (Baigent); and even to give statutes meanings they wouldn’t have had in its absence (Baigent again and Noort).
Still, institutionally speaking, New Zealand’s system exhibits more trust in the majority than any other country’s, with the possible exception of Australia’s. Australia’s Constitution was modelled on, or copied from, America’s, Switzerland’s and the United Kingdom’s. We kept the basic Westminster parliamentary system at the heart of the United Kingdom’s system. We copied Switzerland in making sure that individual voters got a say when it came to constitutional amendments—something not true in the USA or Canada and something that prevents politicians from acting over the heads of voters. And we copied big chunks of the US set-up with a genuine house of review in the elected Senate (unknown in Canada and the UK) and a similar sort of federalism. But we took out the bill of rights that so enervates and emasculates democracy in America. And it is that absence here in Australia that puts us in the top league when it comes trusting voters and relying to a big extent on majoritarianism. Heads-of-powers federalism disputes are simply not as counter-majoritarian or anti-democratic as bill-of-rights disputes, in terms of unelected judges gainsaying elected politicians, not least because the former require the judges to pick between competing elected legislatures.
Notice that in New Zealand (and here too for that matter) you will not find the vast array of elected officials you see in the USA. The Kiwis don’t have the localised decision-making that a vibrant form of federalism carries with it. (And our version of federalism is so enervated that we haven’t much to brag about either on that front.) Likewise the Kiwis don’t have the breadth of outlets and means to challenge elite opinion when it differs from that of the majority. A perfect example is the anti-smacking law. Even after a New Zealand referendum showed 85 per cent wanted to see the end of this law, elite opinion was able to ignore that view—not least because the majority of New Zealanders had no vehicles such as daily blasts from a Fox TV and there was no way for those in the 85 per cent to spend their way into contesting important electoral contests.
Think of this section of context as a reminder that no one country has the same democratic credentials when it comes to starting points or baselines for anyone wishing to make a claim about democratic decline.
Causes of Decline
Just as different countries in the world have different starting points when it comes to considering democracy, and the extent of letting-the-numbers-count decision-making, so too different countries are seeing decline caused by different factors.
In the United Kingdom it is being caused by the extremely undemocratic supra-national European Union, which doesn’t even have a proper legislature and where the civil servants in the European Commission still draft the laws. This is the body that expands its reach without most countries giving citizens an up-or-down vote, one that would clearly have been lost in the United Kingdom on the Lisbon Treaty (something that is 99 per cent the same as the draft constitution that got an initial thumbs down from Irish and French voters and was not put to British ones). In the UK their statutory bill of rights has also transmogrified into a near-constitutionalised version and handed significant powers to the unelected judges to gainsay the voters and their MPs. Indeed, the British judges have now adopted a Humpty Dumpty approach to interpreting statutes that allows them to legislate from the bench for rights-respectingness; as well, over the past decade there have been more than twenty-six Declarations of Rights Incompatibility issued by the UK judges and the elected MPs have caved in to the judges every time, without a single exception. That’s on top of the Humpty Dumpty interpretive approach the judges said their bill of rights reading-down provision made permissible.
The inroads into democratic decision-making in the USA—remembering that institutionally they start with many more checks and limits on such decision-making than New Zealand or Australia—come largely from the judges. The threat comes from progressivist or “living constitution” approaches to interpreting their Constitution (and most significantly their constitutionalised Bill of Rights).
Many people assume that the rights in a bill of rights are unchanging floors—offering some sort of inalterable, specified protection from majoritarian letting-the-numbers-count decisions—above which democracy will decide and which requires constitutional amendment to change. This is the preferred view of US Supreme Court Justice Antonin Scalia. And many small-government libertarians seem simply to assume that this is an accurate account of how most judges today treat these rights. Alas, it is not. Instead we get a sort of “living tree” approach, whereby the rights in the bill of rights alter, shift, change and expand as times change. The top Canadian judges are perhaps the most blatant about this. But the effect is that North American judges give these rights an ever expanding coverage. (So the prohibition on “cruel and unusual punishment” in the Bill of Rights might not have embraced capital punishment 200 or 100 or fifty years ago, but if a majority of judges today think otherwise, then it is taken off the democratic plate.)
That means the scope left for democratic decision-making—on abortion, on same-sex marriage, on the proper treatment of suspected terrorists, on immigration, on capital punishment, and so on and so on—keeps shrinking as the living-tree or living-constitution interpretation of these articulated rights keeps expanding their ambit and aegis.
The US Supreme Court has even taken to using treaties that were not ratified by Congress to help them interpret the Constitution, which seems a big (and not desirable) step.
Canada has another very powerful bill of rights, with judges that I would say are even more interventionist and prepared to gainsay the elected legislature than their US counterparts. Canada’s democratic deficit, like the USA’s, is judicially driven and probably even bigger than their southern neighbour’s.
What about New Zealand? On the whole you can’t get past the conclusion that in comparative terms New Zealand today is one of the most democratic countries going, in terms of letting the numbers count. I’d put New Zealand ever so slightly behind Australia in this regard, because over here we’ve thus far managed to prevent the enactment of a national bill of rights. But Australia aside, you couldn’t really conclude other than that New Zealand has more scope for democratic decision-making than the UK (which I’d put in last place today in the Anglo-American world), the USA and Canada.
There are deficiencies though across the Tasman. I think the statutory bill of rights is one of them. I’d repeal it tomorrow. Sure, it’s not been interpreted anywhere nearly as awfully as the similar one in the UK. But as John Cleese would say, with the sarcasm dripping down his chin, “that’s high praise indeed”. The judges in New Zealand are more powerful than they were before, and they’ve done a lot with their statutory bill of rights.
Then there’s the Treaty of Waitangi. Say what you will about this thing, it is regularly invoked to try to forestall or prevent democratic decision-making. Yes, it remains the case that the New Zealand judges have not yet pronounced it technically to be part of their domestic law, meaning that there needs to be incorporation in a statute. The fact there are many such incorporations in many statutes, talking in gaseous platitudes about the “principles of the Treaty” can of course be sheeted home to the elected legislature for putting in these provisions in the first place.
But the fact that some set-up has been brought about by democratic means does not make that set-up a democratic one. You can vote for a dictatorship or for rule by clerics or anything else and the democratic credentials of that vote do not make what you vote for, and end up with, any less democratically deficient.
And anyway, while the Treaty of Waitangi incorporation clauses may have a democratic genealogy, talk of a “partnership” under the Treaty is wholly a judicial invention.
Then we have the fact that making and ratifying treaties generally can bypass the elected legislature. That is made worse by the fact that judges—especially in rights-based cases—use these treaties and conventions as interpretive aids when seeking the meaning of statutes. This is true also in Australia, accentuated here with the role given to it by the judges in heads-of-powers federalism cases. Judges here have used treaties to take power from the states and give it to the Commonwealth.
The last factor I’ll mention, as far as what is driving democratic decline in New Zealand, is the voting system. This factor is a highly debatable one, and a lot of people whose views I respect think their mixed member proportional (MMP) voting system enhances democracy. But not me. First off, MMP inflates the power of small parties that win only 6 or 7 per cent of the vote. To the extent that such small parties get their preferred policies made into law, the minority’s views end up prevailing.
MMP and all proportional voting systems are generally sold under the banner of “fairness”— the idea being that a party that wins 38 per cent of the vote should get 38 per cent of the seats in the legislature. In a world where unfairness (if we can give it a meaning at all) is endemic, but largely in the eye of the beholder, few proponents of MMP go on to point out the “unfairness” of small parties having a disproportionate influence or the “unfairness” of party leaders being able simply to put favoured people high on their list and so ensure they can get pretty much anyone they want into the legislature, even those who fight and lose a constituency.
Here’s another problem. With Canada’s and the United Kingdom’s first-past-the-post (FPP) voting system, and with my favourite voting system, Australia’s preferential system, you get two main parties. One of these will almost always win a majority of seats in the legislature. That means the two main parties end up being broad-church vehicles—a centre-left one and a centre-right one. The former needs to accommodate (in some shifting, dynamic way) the views of trade unionists, environmentalists, big government social democrats, human rights lawyers, and more. The latter needs to accommodate (again, in a shifting, dynamic way) the views of social conservatives, libertarians and less doctrinaire small government types, high Tories, anti-deficit fiscal conservatives, and more.
But here’s the key thing. Within these big-tent centre-left and centre-right groupings, the main coalition deal-making and internal bargaining takes place before the election. The voters get to see what compromises have been made. With MMP and proportional systems the voters do not. The coalition-forming and deal-making and negotiating take place after the election. Party leaders under MMP go into elections with policies and promises they—and everyone else—know may have to be jettisoned and broken in order to be part of the governing coalition.
So my view is plain. MMP on balance reduces letting-the-numbers-count decision-making by empowering parties and party leaders more than FPP or preferential voting. It adds to democratic decline in New Zealand. Australia looks much better than our antipodean neighbours on this criterion.
In the last twenty or thirty years I’d say that democracy has been in decline in the Anglo-American world. Of course in any comparative sense these countries are still the most democratic ones going, with the possible exception of a Switzerland here or there. But Canada, the UK, the USA, Australia and New Zealand have all suffered symptoms of decline. There is less majoritarian say than there was. The trend is worst in the UK—indeed as something of an anglophile I despair at what I see going on there. The trend is least pronounced in Australia, and next least in New Zealand. But even in these latter two—with Kiwi factors such as the Treaty of Waitangi, the statutory bill of rights and MMP and Australian factors such as the judicially invented implied rights jurisprudence—that trend is far from insignificant. It needs to be countered and turned around.
James Allan is Garrick Professor of Law at the University of Queensland and a frequent contributor to Quadrant and Quadrant Online.