The Volokh Conspiracy

This coming week, on Thursday and Friday, I will be doing three different two talks in New York City, two at NYU Law School, and one at Columbia Law School.

On Thursday, April 11, from 12:10 to about 1:10, Columbia law Professor Theodore Shaw and I will be debating affirmative action and the Supreme Court’s upcoming decision in Fisher v. University of Texas. The event is sponsored by the Columbia Federalist Society, and will be held in Room 103 of Jerome Greene Hall, 435 W. 116th St.

Later on Thursday, from 4 to 5:30 PM, I will be speaking at NYU about my forthcoming book Democracy and Political Ignorance (Stanford University Press), focusing specifically on the parts of the book that outline how the problem of rational political ignorance can be mitigated by decentralizing political power. This event is sponsored by the NYU chapter of the Federalist Society, and will be in Vanderbilt Hall, Room 216, at 40 Washington Square North.

Finally, on Friday, April 12, at 1 PM, I will again be speaking at NYU at a symposium commemorating the 100th anniversary of the 17th Amendment, entitled “Democracy Unfiltered: Discussing 100 Years of Direct Elections and Modern Issues Affecting the Law of Democracy.” Also on this panel will be Rick Pildes (NYU), Wendy Schiller (Brown), and Bruce Cain (Stanford). The event is sponsored by the NYU Journal of Legislation and Public Policy, and will be held in Vanderbilt Hall, at 40 Washington Square North.

In a forthcoming article I coauthored with economists Bryan Caplan, Eric Crampton, and Wayne Grove, we find that voters routinely make major mistakes in attributing responsibility for a variety of policy outcomes to different branches and levels of government. This undermines voters’ ability to properly reward and punish political incumbents for their performance. The article will be published in PS: Political Science and Politics, and a draft is now available on SSRN. Here is the abstract:

Many scholars argue that “retrospective voting” is a powerful information shortcut that offsets widespread voter ignorance. Even relatively ignorant voters, it is claimed, can punish incumbents for bad performance and reward them if things go well. But if voters’ understanding of which officials are responsible for which issues is systematically biased, retrospective voting becomes an independent source of political failure rather than a cure for it. We designed and administered a new survey of the general public and political experts to test for such biases. Our analysis reveals frequent, large, robust biases in voter attributions of responsibility for a wide array of political actors and outcomes, with an overarching tendency for the public to overestimate influence, though there are also important examples of underestimation.

In two recent posts, guest-blogger John McGinnis makes a strong case that the US government should legalize prediction markets, that these markets are valuable sources of information, and that claims that prediction markets can easily be “manipulated” are overblown. I agree completely on all counts. Nevertheless, I am somewhat pessimistic that prediction markets will do a lot to overcome the problem of political ignorance.

As I discussed in my previous post commenting on John’s excellent new book Accelerating Democracy, voters are rationally ignorant about politics, and are often unaware of even very basic information about government and public policy. Thus, even if prediction markets make high-quality data readily available for free, most voters may pay little or no attention to it, just as they currently ignore most of the information already available from other sources. In this context, it’s worth noting that there’s little if any evidence that more than a tiny fraction of voters have been paying attention to prediction markets over the last few years that the data has been available. Although I haven’t seen any survey data on the subject, I would not be surprised if a majority of Americans have not even heard of prediction markets, much less been paying attention to the data they generate. Obviously, as John points out, voters who actually place substantial bets on prediction markets do have a strong incentive to pay attention to them. But that is likely to be only a small proportion of the population, just as currently only a small proportion are highly active sports bettors.

Even those voters who do pay some attention to prediction markets may not evaluate their results with anything approaching objectivity. Just as voters tend to overvalue other types of information that confirm their preexisting views, while undervaluing any that cuts the other way, they could do the same with prediction market results. The very nature of prediction markets makes many people’s reactions to them particularly susceptible to cognitive bias. Because they seem like frivolous “gambling” on life and death political events, people may be tempted to ignore inconvenient results as unserious. In addition, political activists can easily use demagoguery against them. To borrow one of John’s examples, if prediction markets indicated that a capital gains tax increase would harm the economy, liberal activists and politicians could dismiss that on the grounds that the result must have been manipulated by Wall Street fatcats eager to protect their ill-gotten gains. If the markets predicted that a military action proposed by a Republican president is likely to fail, conservatives could blame the result on manipulation by liberal financiers like George Soros and other “unpatriotic” and anti-American left-wingers.

Finally, political ignorance makes it more difficult for prediction markets to function at all. In part because most of the public is either unaware of prediction markets or does not understand their value, there was little outcry over the US government’s recent crackdown on Intrade, one of the largest prediction market sites. The Commodity Futures Trading Commission forced Intrade to stop taking bets from Americans.

If more people appreciated the benefits of prediction markets, the CFTC might have been met with a massive political backlash and compelled to back down. So far, political ignorance has merely allowed the CFTC to act against prediction markets without facing much public opposition. In the future, however, opponents of prediction markets might be able to use populist rhetoric to actively mobilize public opinion against them. If, for example, government started relying on prediction markets to inform policy decisions opposed by liberals, one can easily imagine an Occupy Wall Street-like campaign against it. If prediction market-driven policies seemed to tilt leftward, conservatives could resort to populist attacks of their own. And such campaigns might well fall on receptive ears.

This is not to say that prediction markets are useless. Far from it. People can still use the data to make private sector decisions and for “voting with their feet” between states and local governments. In these situations, rational ignorance is far less of a problem. Some of the prediction market data people learn for those purposes might also eventually affect their ballot box decisions, though it’s important to remember that the types of data useful for these two purposes are often very different from each other. Prediction market data can also be used to good effect by government officials and policy experts. But, at least in the short to medium run, the potential policy benefits of prediction markets are likely to be significantly curtailed by political ignorance.

UPDATE: I have made some stylistic and organizational changes to this post in order to increase readability.

Guest blogger John McGinnis’ new book Accelerating Democracy is an outstanding analysis of the ways in which modern technology and social science can improve the quality of decision-making in government and society. It is probably the most important book on that subject in a long time.

Much of John’s thesis is compelling. He is right that modern social science enables us to evaluate the effects of public policy far more accurately than in the past, and that modern technology makes it easier to disseminate the resulting knowledge. I also agree with John’s argument that the technological and social scientific revolutions strengthen the case for political decentralization, enabling lower-level governments to experiment with new types of policies. We can now evaluate such experiments much better than in the past, which increases their value to society. John is especially persuasive in arguing that we should legalize prediction markets, which are an extremely valuable source of information, even if imperfect.

I do, however, have two reservations about John’s conclusions: Because of the problem of rational political ignorance, voters may fail to exploit much of the new information available to them. We will be able to make better use of new data if we make more of our decisions by “voting with our feet” than by voting at the ballot box. And in many cases, such foot voting is best facilitated by limiting state and local government power, as well as that of Washington.

I. How Political Ignorance Reduces the Benefits of New Information.

As John effectively demonstrates, recent technological advances both give us new policy-relevant information and make it easier for the public to access it. The problem is that voters have little incentive to actually learn and make use of the new data. Because any one vote has only an infinitesmal chance of influencing the outcome of an election, most voters have little incentive to learn political information. They are “rationally ignorant”. As a result, the majority of the public is often ignorant of very basic political information that has long been readily available through the media and the internet. For example, when the GOP nominated Paul Ryan for vice president last year, oonly 32% of the public knew that he was a member of the House of Representatives, even though he had been a major figure politics for several years. Most are also ignorant about the distribution of spending in the federal budget, the issue Ryan was most associated with, and one that has been a major point of contention over the last few years in light of our severe fiscal crisis.

As I discuss in my own forthcoming book Democracy and Political Ignorance (Stanford University Press, to be published this fall), political knowledge levels have remained low and risen little if at all over the last fifty years, despite massive increases in education and the rise of electronic media and the internet. The problem is not lack of information, but voters’ lack of motivation to learn it. So far, there is no indication that new technological breakthroughs will change that. Huge amounts of new information are of only limited value to an electorate that often ignores basic facts that are already widely available.

Rationally ignorant voters also have little incentive to objectively evaluate the political information they do learn. Instead, they tend to evaluate it in a highly biased way, discounting anything that cuts against their preexisting views. Because the consequences of error for any individual voter are low, few try hard to objectively evaluate about new information they learn about public policy.

The combined impact of rational ignorance and bias greatly reduce the potential benefits of new information for improving the performance of democratic government. Obviously, public opinion is not the only influence on government policy in a democracy. But it does have a substantial impact, one that is affected by ignorance. John notes the problem of political ignorance in his book. But I don’t think he shows that new technology can overcome it. At the very least, there is reason for skepticism on this point, given our experience with the last fifty years of technological innovation.

Fortunately, however, we can make more effective use our new knowledge in another way. When we “vote with our feet” by choosing between jurisdictions in a federal system, or between products in the market, we have much stronger incentives to learn relevant information and evaluate it rationally. If you are like most people, you probably spent a lot more time and effort seeking out information the last time you bought a car or a TV than the last time you decided who to support for the presidency. That’s not because the presidency is less complicated than or less important than your TV. It’s because when you buy a TV, you know that your decision will make a real difference to the outcome, whereas with the presidency that is highly improbable. The same goes for deciding what city or state you are going to live in.

II. Taking Decentralization All the Way Down.

The informational advantages of foot voting over ballot box voting reinforce John’s argument for political decentralization, limiting the power of the federal government in order to allow more issues to be decided at the state and local levels. The more issues are decentralized, the more decisions can be made by voting with our feet. Sometimes, however, we can empower foot voters even more by limiting state and local governments in order to empower the private sector.

Foot voting in the private sector has significant advantages over choosing between governments. Among the most important is lower moving costs. Moving from one city to another or one state to another is much more costly than moving to a new private planned community or switching to a new service provider in the market. The latter can often be done without moving at all. Reducing moving costs is especially important when it comes to making decisions about immobile assets, such as property rights in land. In such situations, the case for limiting state authority in order to empower the private sector is at its strongest. And enforcing such limits may require the federal intervention, including by federal courts.

Transferring decisions to private hands also often facilitates exploitation of new information. Private sector actors such as property owners often know far more about their preferences and the possible uses of their assets than the government does, a point I discuss in more detail in this article. And because there are many more private organizations than governments, they are in a position to try out a much wider range of the kinds of experiments that John rightly advocates. As John Stuart Mill pointed out back in the 19th century, creative private organizations are often the ones who develop the most innovative “experiments in living.” But such experiments are more likely to flourish if not preempted by government regulations that mandate uniformity.

The informational advantages of political decentralization and privatization are far from the only issues we need to consider in deciding how large and centralized government should be. Some problems are too large-scale to be handled by any private actor or subnational government. Global warming is an important example. But information issues do tilt the scales in favor of greater decentralization and tighter limits on government power than we might support otherwise.

In order to take full advantage of the information revolution described in John’s excellent book, government needs to be smaller and more decentralized.

When Hosni Mubarak’s dictatorship began to collapse two years ago, I expressed the fear that the ultimate outcome might be a new Egyptian government more oppressive than the old. The main reasons for my concern were that illiberal radical Islamists were far better positioned to seize power than liberal democrats, and that Egyptian public opinion was itself highly illiberal, which raised the possibility that radical Islamists could prevail even in a genuinely free election.

Since then, the first Egyptian presidential elections have been won by radical Islamist Mohammed Morsi, who proceeded to persecute journalists who “insulted” him, kill numerous protestors, and assume near-dictatorial “emergency” powers.

Fearing a descent into Islamist dictatorship, more liberal Egyptians have taken to the streets in protest. Harvard Law School Professor Noah Feldman, a leading academic expert on Middle Eastern law and politics, sympathizes with them, but argues that they should not undermine Morsi’s democratically elected government lest they bring on a reversion to military rule:

I hate to agree with an Egyptian general about anything, but Abdelfatah Al-Seesi, who’s also Egypt’s defense minister, had a point when he warned his countrymen on Facebook that continued violent protest in the streets might lead to collapse.

Ordinary Egyptians have plenty of reasons to be frustrated with the government of President Mohamed Mursi, which has by turns overclaimed its authority and underdelivered in establishing order. Still, it’s one thing to engage in mass protest when your target is a dictatorship — then you are a democratic revolutionary. It’s quite another to use mass protests to try and bring down a democratically elected government that you don’t like. Then you’re running the risk of becoming an unwitting agent of counterrevolution....

If Egypt’s democrats want to avoid becoming another Pakistan, in which democracy is never more than a few shots from military dictatorship, they have just one path available to them: take a deep breath, go home, and let the democratically elected government try to do its job. Mursi and his government may do well or badly. But as long as they are up for re-election in a few years, they will have laid the groundwork for democratic transition.

Patriots of Tahrir, ask yourselves: You may not like Mursi. But would you really rather have the army?

Feldman certainly knows more about Egyptian politics than I do, and he may be right in his bottom-line conclusion. But the issue is more complicated than his description suggests. If Morsi continues to persecute his political opponents and establishes an Islamist dictatorship, his government might not be “up for re-election in a few years,” at least not a free election in which opposition parties are allowed to compete on equal terms. If Morsi is not overthrown now or at least forced to accept tight constraints on his authority, Egypt’s “democratic transition” could easily turn into a case of “one man, one vote, one time.”

Even if Morsi retains a relatively free democratic process, the illiberal nature of majority Egyptian opinion could still lead to severe oppression of women, liberals, religious minorities, and others. Democracy is an important value. But it is not the only value that matters and not necessarily the most important. A modestly repressive authoritarian regime might be a lesser evil compared to a democracy governed by a sufficiently oppressive illiberal majority.

Egypt is not the first nation that has transitioned to democracy under the shadow of powerful illiberal political forces that threaten to seize power. Some new democracies have dealt with the problem by banning illiberal political parties or otherwise making it harder for them to seize power through the democratic process. For example, post-World War II West Germany banned the Nazi and Communist parties (the latter was legalized only in the 1970s, while the former remains illegal to this day). After the fall of communism, several Eastern European nations adopted “lustration” laws banning many former communist officials from holding public office. Such laws create genuine injustices and also carry slippery slope risks (if we ban the communists, why not moderate socialists or liberals?). But if the threat of an illiberal takeover is severe enough, they might be the lesser of the available evils. In some extreme cases, the only way to save democracy or other important liberal values is to impose severe limits on the democratic process itself.

Egypt’s liberal democrats face a genuinely difficult dilemma. Confronting Morsi’s government in the streets may indeed risk the return of military rule. But failing to do so might pave the way for an even more oppressive Islamist government, possibly one that blocks future democratic elections once it has consolidated its power. If it were my choice, I would probably rather live under a junta of corrupt generals who are in it for money and power than under radical Islamists who want to force all of society to obey their version of Sharia law. The former might only impose enough repression to hold onto power and enrich themselves and their cronies. The Islamists, by contrast, might seek to impose brutal control over all aspects of society. Better to be ruled by crooks than quasi-totalitarian ideologues. But liberal Egyptians have to consider the relative likelihood of the two dangers as well as the relative severity. A high probability of moderately oppressive military government might be worse than a much lower probability of severely oppressive Islamist rule. Regardless, the right answer to the problem – assuming one even exists – can’t be determined simply by the fact that Morsi was democratically elected.

UPDATE: In this recent Washington Post article, Fareed Zakaria argues that Egypt is in danger of sliding into Islamist rule because it “chose democratization before liberalization.” He notes that Egypt’s new Islamist-influenced constitution is highly illiberal and points out that “[m]ore journalists have been persecuted for insulting Morsi in his six-month presidency than during the nearly 30-year reign of Mubarak.”

For an example of a pure, spontaneous eruption of joy it’s hard to beat the moment we learned that the anti-gay marriage amendment had been defeated in Minnesota.  At 1:45 the staff and board of Minnesotans United For All Families, was gathered in a conference room just across from the hall from where thousands had gathered for the main victory party taking place. We had started out with a big lead of 60%-40% early in the night but had seen that lead dwindle hour-by-hour until the “yes” and “no” votes were almost tied. Still, we’d heard that votes in Minneapolis were not yet in and that these should bring good news.  So the mood was cautiously optimistic, intense, focused, and nervous.

Richard Carlbom, the campaign manager, stood up on a chair and began addressing the room of perhaps 100 staff, volunteers, and board members.  They had given everything they could for months to beat the amendment.  Since my phone’s battery was dead, I asked my partner to video what he said.  Nobody expected what happened next.  Carlbom told us how much we’d accomplished as a campaign. He said he was hopeful we’d win but that the race was still too close to call.  Since we had to be out of the convention hall by 2 a.m., he said, we wouldn’t know the result for sure until morning.  As he was about to close, he was interrupted by the campaign communications director, Kelly Schwinghammer, who had been busily checking her smart phone for the latest news.  “Hey Richard,” she said calmly, ”the AP just called it.”  To see the speech and the reaction to the announcement, follow the link below (see especially beginning at about the 2:55 mark):

The Moment of Victory in Minnesota

This is the only video that I’m aware of capturing the precise moment when we learned we’d become the first state ever to defeat an anti-SSM constitutional amendment.

Most of the post-election attention to the gay-marriage ballot fights has focused on the inspiring wins in Maine, Maryland, and Washington state, where same-sex marriages will now be legal.  But equally important in the long-term is what happened in Minnesota on Tuesday.  Eighteen months ago, when the state legislature voted to place a ban on same-sex marriages on the ballot, I wrote that “on November 6, 2012, Minnesota will become the first state to reject one of these amendments.”  Many people (myself included) were skeptical of that prediction.  It was more a hope than a forecast. Until midnight or so last night, I still doubted we’d win.  Losing Minnesota, for me and for my family and friends, would be a punch to the gut even harder than losing California.

In 30 states, same-sex marriage had never won a popular referendum.  Minnesota is reliably blue, but is more socially conservative than people realize.  The state GOP had taken both the state senate and house in 2010, which is what permitted the issue to go to the ballot.  Minnesota is more religious, with a higher percentage of weekly churchgoers, than places like Maine and California.  It’s in the middle of the country, not on one of the coasts.  In 2006, neighboring Wisconsin had approved a broader amendment by 59%-41%.  Polls on gay-marriage amendments had always been notoriously unreliable, underestimating opposition by an average of seven percent. The public polls never showed us beyond that error rate.  Opponents had a devastating, if misleading and exaggerated, message about how gay marriage would mean the loss of religious freedom, kids would be “taught gay marriage,” judicial activists would impose their will, and family structure would unravel. Somehow all of this would be caused by the marriages of people like two of my best friends, a gay-male couple of 25 years living in Minneapolis. Gay marriage advocates had never found the combination to crack the code of these anti-SSM messages.

Over the next 18 months, with the clock ticking toward November 2012, we built a political movement from the ground up. Under the banner of Minnesotans United For All Families, and led by an incomparable tactician and campaign manager in Richard Carlbom and a ferociously smart board chair in Cristine Almeida, we organized a campaign that was unprecedented in size and scope for a ballot fight in the state.  We put together a coalition of more than 700 faith groups and churches, political allies across the spectrum (including prominent conservative and libertarian Republicans), labor groups, people of color, and businesses.

I was told we’d never raise a million dollars in Minnesota and that national donors would stay out because of our poor track record around the country and because the Midwest was a lost cause.  Some national donors did stay out.  But we still raised $12 million.  And while hundreds of thousands of dollars were donated by national groups like the Human Rights Campaign and Freedom to Marry, and more by some wealthy individual donors, the vast majority of the money was raised from some 65,000 individual donors in the state.

The message fused conservative and libertarian themes and was honed from the experience of many losses and much research by groups like Freedom to Marry and Third Way. The socially conservative idea was that marriage enhances and cements the shared social values of love, commitment, and strong families.  The libertarian argument was that government has no business limiting the freedom of gays and lesbians to make that commitment.  We took the issue of gay marriage head-on.  We didn’t avoid religion, but instead agued that the religious beliefs of many faiths were being attacked by the proposed ban.  Ads featured Catholics, older couples with gay sons and daughters, former opponents of gay marriage, and identified Republicans.  The most powerful ad, which closed the campaign, excerpted an anti-amendment speech by wounded Iraq war veteran and married father John Kriesel.  Kriesel, a Republican state representative, recounted the sacrifice by Cpl. Andrew Wilfahrt, a gay soldier killed-in-action in Afghanistan. The campaign’s messaging was informed by Grove Insight and the ads were executed by 76 Words.

Money and messaging were not the only important factors. In the past, advantages in money and sophistication were not enough. In earlier contests, intensity was always on the anti-gay-marriage side.  My anecdotal experience is that the intensity gap was erased in Minnesota and, I suspect, in the other 3 states that fought out the issue this year.  The campaign against the Minnesota marriage ban was infused with a level of dedication and energy that must be rare in politics. That intensity came from young people, and especially from heterosexuals, who seemed as committed as gay activists to beating the amendment.  There is no question that a generational shift has occurred and that that shift is moving itself up the demographic ladder.  It’s not a “gay marriage” issue anymore.  For increasing numbers of Americans, it’s a marriage issue.

In the last week, the Minnesotans United campaign made 900,000 calls to voters; it knocked on the doors of 400,000 homes; it enlisted 27,000 volunteers.  I don’t know what the comparable numbers were on the other side, but Minnesota had never seen anything like it.

This has been a long time coming.  When gay couples sued to get married, opponents laughed at them and courts dismissed them. When they won a few victories in court, opponents countered that the issue was appropriate only for legislative decision. When legislatures started approving gay marriages, opponents argued that the matter shouldn’t be forced on people by elite politicians. “Let the people decide” became their mantra in Minnesota and around the country.

Yesterday the people of four states decided.  They affirmatively voted for gay marriage in three states, and rejected the proposed ban in Minnesota by 52.4% to 47.6%.  (For county-by-county results, see this site.)  In a fifth state, Iowa, they voted to retain a supreme court justice who had been politically targeted for voting in favor of a gay-marriage claim. The result, I expect, will be a profound change in democratic momentum. At the very least, it was the best single day yet for the cause of allowing same-sex couples to marry.

Winning means more state legislators willing to vote for gay marriage. Winning means a greater willingness to take this issue to the ballot in more states, including some where we’ve previously lost.  Winning means more investment by national donors.  Winning means more enthusiasm and energy, more volunteers, more effective messages, more confidence.  Winning at the ballot box had become a Sisyphean task. Again and again, we’d get tantalizing close to the summit, only to have the boulder fall back to the bottom of the hill.  And then, as we looked down to take up the task once more, we’d be taunted for having failed.

Victor Hugo said that there is nothing as powerful as an idea whose time has come.  The idea that marriage is good for all families, gay and straight, is taking hold in a religiously devout state in the middle of the country. Winning Minnesota, with the support of 1.5 million of our fellow citizens, means that our time is coming.

Nine down, 41 to go.

Canadian legal blogger Leonid Sirota has posted an interesting response to my post advocating extension of the franchise to politically knowledgeable children. He argues that it is unjust to require children to pass a knowledge test for voting, but not adults. He would therefore prefer to lower the voting age to 16 instead:

Pour ma part, je pense que l’option du vote à 16 ans est préférable à celle d’un test. Au-delà problèmes d’administrabilité évoqués par prof. Somin, ce sont arguments qu’il apporte lui-même qui semblent militer contre l’instauration de tests pour les mineurs. S’il n’y a pas de bonne raison de traiter les jeunes différemment des adultes, et les arguments de prof. Somin pour dire qu’il n’y en a pas sont très convaincants, alors il est sûrement injuste d’instaurer un test pour les premiers mais pas pour les seconds. Si les connaissances du système politique devraient être un critère pour pouvoir voter, il n’y a pas de raison pour ne pas appliquer ce critère aux adultes.

Sirota’s post is in French, which I understand, but most of our US readers probably don’t. I would translate the key passage roughly as follows: “If there is no good reason to treat the young differently from adults, and Prof. Somin’s arguments that there isn’t one are very convincing, it is surely unjust to institute a test for the former, but not the latter. If knowledge of the political system should be a prerequisite to getting the right to vote, there is no reason not to apply that criterion to adults.” If I have gotten the translation wrong, I hope Sirota or one of our French-speaking readers will correct me.

I am not convinced by Sirota’s objection. It’s true that my proposal doesn’t eliminate all unequal treatment of children and adults. Children would have to pass a test to be eligible to vote, whereas adults would not. But the same is true of both the status quo voting age of 18 and Sirota’s proposal to cut it to 16. In both cases, people younger than the voting age are categorically denied the franchise solely because they are minors. My proposal doesn’t completely eliminate the unequal treatment. But it does reduce it by at least giving children some opportunity to vote.

I would prefer to minimize government policies that discriminate on the basis of age. But there are some cases where age is so closely correlated with some important ability that it’s difficult to avoid. In this case, it’s undeniably true that children, on average, have much lower political knowledge than adults. And political ignorance is a serious problem that we don’t want to exacerbate by, say, allowing completely ignorant six year olds to vote. Giving the vote to knowledgeable children both diminishes the extent of age discrimination in voting policy and actually increases the average knowledge level of the electorate. It’s a win-win situation all round.

Why not, then, require adults to pass a knowledge test as well? As Sirota says later in his post, this is not a completely ridiculous idea. But it does have two serious flaws. First, as I discuss in an earlier post, there would be a serious danger of potential partisan bias in the design of the test. I’m not certain we can overcome them even with a test confined to children. But the danger is much greater if the test applies to all voters rather than just a small subset.

Second, there is a big difference between using a test to expand the franchise to a group that has always been barred from it, and using it to take away voting rights from millions of people who have them now. The latter is both politically infeasible and quite likely unjust as well. In general, I’m not a big fan of Burkean conservatism. But this is one of those areas where Burkean suspicion of drastic change is probably justified. Allowing knowledgeable children to vote isn’t subject to the same objection, since it is likely that it would alter the composition of the electorate only modestly. Probably only a small percentage of children would both want to take the test and be able pass it.

My proposal is far from perfect. It wouldn’t completely eliminate age discrimination in voting rights, and it certainly isn’t a complete solution to the problem of political ignorance. But it could well be a genuine improvement over the status quo on both fronts. I think that’s reason enough to at least give it serious consideration.

UPDATE: Sirota has put up a response to this post:

I think that what drives the disagreement between us is that we have different views on what justifies the denial of a legal right to vote (note that I am only talking about the legal situation―prof. Somin makes the case, in a separate post, that there is something like a moral duty to abstain from voting on issues or candidates about which one is ignorant, and I agree with him on that). In prof. Somin’s view the key factor is political knowledge, and lack thereof. I think that the real issue is not so much knowledge as maturity and capacity for judgment.

It is true that minors are generally less knowledgeable about politics (and other things) than adults. But they are also, on average, less mature and less capable of responsible judgment, and the law recognizes this diminished capacity by making them, depending on their age, less criminally liable, incapable of entering into (certain kinds of) contracts, etc. At least in criminal cases, it is quite clear that the reason for the distinction made between minors and adults is not knowledge of the relevant facts, but capacity for judgment. I think that it is the reason for the other distinctions too. Note, too, that the one category of adults to whom we uncontroversially deny the franchise are those too mentally ill, too lacking in judgment and decision-making ability to be responsible for their own decisions; such people have guardians, just like children do. They need not be ignorant―but their judgment faculty is severely impaired.

Now, in those areas where―I think―the law makes distinctions on the basis of age that are grounded in maturity and capacity for judgment, it usually does so by drawing bright lines.

Obviously, some degree of judgment is necessary for almost any decision. But in my view, there is a big difference between a situation where we are making choices in our own personal lives (e.g. – signing contracts, to use one of Sirota’s examples), and decisions where we are choosing rulers for an entire society. The former kind of decision usually requires only a modest amount of knowledge, and it is reasonable to assume that anyone with reasonably good judgment could acquire it. By contrast, good judgment of the sort that enables us to make effective personal decisions is not the most important factor in making voting decisions. There, we need knowledge of how policy affects people in very different circumstances from our own. The key ingredient here is not judgment of the kind that helps us make personal decisions, but knowledge of how large-scale political and economic systems work. Personal experience and judgment is only of limited relevance. A person can easily be an above-average quality voter while displaying poor judgment in their personal life, and vice versa. I make that case in more detail here. My guess is that any child who has more political knowledge than the average adult is also likely to have enough judgment to analyze that knowledge at least as well as the average adult eligible to vote (which may, of course, not be a very high level of competence in an absolute sense). On net, therefore, my proposal would still improve the overall quality of the electorate, even if perhaps only slightly.

Even with respect to criminal law and contracts, I think that knowledge plays a bigger role in the law than Sirota suggests. One big reason why we distinguish between minors and adults in these areas is that the latter are less likely to understand the true consequences of certain contracts, or of criminal acts. They may also be less likely to realize that a given act is wrong. That’s also a major factor in the differential legal treatment of the mentally insane. Indeed, the traditional legal definition of insanity actually defines it in terms of lack of knowledge: the defendant gets off if, as a result of his mental disease or defect, he (i) did not know that his act would be wrong; or (ii) could not understand the nature and quality of his actions.

It’s also worth noting that Sirota’s proposal of reducing the voting age to 16 without imposing tests of either knowledge or judgment would result in a reduction of the quality of the electorate on both dimensions (assuming, of course, that 16 to 18 year olds on average have worse judgment than adults). And, as I previously noted, it would continue to engage in more blatant age discrimination than my idea, since those under 16 would be forbidden to vote regardless of their level of knowledge or how good their judgment might be.

Finally, contra Sirota’s description of my view, I don’t necessarily regard it as a “mistake” that we have extended the franchise to include all or nearly all adults. As discussed above, I’m skeptical that we can trust government enough to come up with a knowledge test that would apply to the entire electorate. Creating a knowledge test that applies only to children poses fewer risks of abuse.

In response to my post arguing that we should grant voting rights to politically knowledgeable children, Paul Horwitz of Prawfsblawg makes the following suggestion:

What spurred this post is Ilya Somin’s argument on the VC yesterday that knowledgeable children ought to be allowed to vote. He addresses some standard objections in his post, but a number of his commenters wrote to argue that such a rule, if enforced by knowledge or literacy tests, would end up privileging some groups and disadvantaging others (as, indeed, previous tests have done in the United States). Indeed, given massive educational inequality in this country, it’s hard not to see how this proposal wouldn’t give much more electoral power to the wealthy, well-educated, mostly white elite. Unless....perhaps Ilya would welcome a trade-off: knowledgeable children get the vote, in exchange for guarantees of massive public/private efforts to assure meaningful educational and welfare rights to ensure that the opportunity to be a knowledgeable child voter is fairly and widely distributed among the entire population rather than limiting that vote to enclaves with better resources. I’m just going to go ahead and consider this Ilya’s very subtle case for overruling San Antonio School District v. Rodriguez [the 1973 decision that ruled that there is no constitutional right to equal education spending].

Paul is, of course, entitled to interpret my argument however he wants. But I have no desire to overrule Rodriguez. Setting aside the legal merits of the case, extensive evidence compiled by economists Eric Hanushek and Alfred Lindseth shows that increasing education spending in public schools does little or nothing to increase educational achievement. On the other hand, I would be happy if my child-voting proposal were paired with increased school choice, which does have a demonstrated record of increasing educational achievement among poor minority children.

That said, I think the child-voting proposal could potentially be implemented even in the absence of increasing school choice. Most studies of racial attitudes suggest that racism is correlated with age (the young are much less likely to be racist than their elders) and inversely correlated with knowledge and education (the knowledgeable and educated are less likely to be racist). Therefore, even if knowledgeable children are disproportionately likely to be white and/or wealthy, the resulting electorate is not likely to be more hostile to minorities than the one we have now, and may well be less so. Much evidence also suggests that there is little correlation between political attitudes and narrow self-interest (after controlling for other variables that affect political opinion). So it’s unlikely that knowledgeable children (or knowledgeable adults) would seek to promote policies that benefit the rich or some narrow interest group at the expense of the general public or the poor. Indeed, at this point in history, the young, including the well-educated young, are disproportionately liberal Democrats.

Finally, it’s worth noting that the unequal historical impact of literacy and knowledge tests was in considerable part the result of biased application. Unbiased test administration would have a much less skewed effect. And, obviously, racial or ethnic bias in test administration would today (unlike in the Jim Crow era) be grounds for lawsuits under the Voting Rights Act and the Fourteenth and Fifteenth Amendments.

That said, as I noted in my original post, I do take seriously the danger that incumbent political leaders would try to skew the test to favor their political supporters and disfavor opponents. I don’t at this point have anything approaching a complete solution to this problem. But I’m not convinced it’s completely intractable either. One possible approach would be to leave the design of the test to a politically balanced, nonpartisan commission. Some election scholars believe that this approach has helped solve the comparable problem of gerrymandering of political districts in favor of the incumbent party in places like Nebraska. But I admit that for my proposal to actually work in practice, this issue would have to studied much more carefully.

UPDATE: I should note that I’m aware that the Voting Rights Act of 1965 suspended the use of tests for voting in much of the country because they had been used to exclude African-Americans. It’s likely that the Act would have to be modified to permit knowledge tests for minors in order for my proposal to be allowed in states covered by that section of the Act. I think there are obvious and important differences between using knowledge tests to exclude adults, and using them to include children who otherwise would be categorically barred from voting in any case. In any event, allowing states to use knowledge tests for children is still compatible with also giving both individuals and the federal government to sue states that attempt to use the test for purposes of racial or ethnic discrimination, whether by designing it in a biased way, or through unequal enforcement.

On this election day, as on most others, we will hear a lot about the need to increase turnout and the dangers of voter suppression. But few will even consider questioning the systematic exclusion of a huge part of our population from the franchise: children under the age of 18. We allow even the most ignorant and irresponsible adults to vote, but exclude even the most knowledgeable and insightful children. And to add insult to injury, we saddle them with a mediocre education system and trillions of dollars in public debt that they will someday have to repay.

For reasons I outlined during the last presidential election, this is both unjust and counterproductive. We should at least consider allowing children to vote if they are more knowledgeable than the average adult voter:

The main objection to giving children the vote is that they lack the knowledge to make informed choices. Of course the same is true of most of the adult electorate, who are rationally ignorant about politics and public policy, and often don’t know even very basic facts. Nonetheless, it’s probably true that the average child knows a lot less about politics than the average adult, and that may be a good reason to deny most children the franchise. But why deny it to all of them? If a minor can pass a test of basic political knowledge (say, the political knowledge equivalent of the citizenship test administered to immigrants seeking naturalization), why shouldn’t he or she have the right to vote? Such a precocious child-voter would probably be more knowledgeable than the majority of the adult population. Giving her the right to vote would actually increase the average knowledge level of the electorate and thereby slightly improve the quality of political decision-making. I’ve met twelve-year-olds with far higher levels of political knowledge than that of the average adult. You probably have too.

Once the knowledge objection is off the table, all the arguments for giving adults the right to vote also apply to sufficiently knowledgeable children. Like... adults, children have a claim to the franchise because government policies affect them too, because otherwise their interests might be undervalued in the political process, because it affirms their status as citizens with equal rights, and so on.

Obviously, there might be some difficult administrative issues. For example, we might not trust the government to put together an adequate knowledge test. But I don’t see any principled reason to deny the franchise to children whose political knowledge is greater than that of most adult voters.

Other standard objections to letting knowledgeable children vote also don’t hold much water, and in some cases resemble long-discredited justifications for excluding women from the franchise:

Some people might worry that even knowledgeable child-voters will be “unduly” influenced by their parents’ preferences. Given the existence of the secret ballot, I doubt that this would be a major problem. Moreover, children who are knowledgeable enough to pass the test and interested enough to take it will probably have at least some political ideas of their own that aren’t easily susceptible to parental suasion. In any event, I’m not sure that the possibility of parental persuasion would necessarily be a bad thing. The objection is in fact similar to one of the arguments once raised against giving women the right to vote – that they would be unduly influenced by their husbands or fathers. Husbands will often influence the views of their wives (and vice versa); similarly, parents will influence those of their children. That doesn’t by itself justify denying either married people or children the right to vote....

[C]hildren might lack maturity or life experience, as well as knowledge.... I’m just not convinced that either is tremendously useful for voting. Most voting decisions have to do with complex, large-scale policy issues that can’t easily be weighed based on personal experience. Realistically, even most adults have little life experience that is directly useful in assessing difficult policy issues... At the very least, it seems to me that superior knowledge might well outweigh inferior maturity and life experience. And I’m only advocating giving the franchise to children who can demonstrate knowledge levels superior to those of the average adult voter...[Moreover, we don't exclude even the most immature adults from the franchise, even if they are highly ignorant to boot].

[Some cite] the value for voting of such “adult” experiences as holding a job, paying taxes, owning property, and so on.... I’m skeptical that these experiences greatly improve the quality of voting decisions. Even more to the point, however, we don’t exclude from the franchise the many adults who lack some or all of these experiences – even if they are also ignorant of even the most basic political knowledge. If lack of life experience is not enough to justify exclusion of even the most ignorant adults from the franchise, I don’t see why it should be considered sufficient to exclude vastly more knowledgeable minors.

The key conclusion is this: There is no plausible justification for excluding knowledgeable children from the franchise that doesn’t also apply to large numbers of adults. We could easily exclude adults who don’t have a job, don’t own property, or lack whatever other life experience supposedly makes you a qualified voter. But virtually everyone agrees that we shouldn’t.

One can argue that the exclusion of children is more permissible than that of comparable adults because it is “only” temporary. But every election leads to policy decisions that have permanent long-term effects. Knowledgeable children who were denied the vote in 2004, 2008, and this year, are going to be massively affected by the decisions made by the winners of these elections. And, of course, the exclusion of adults who don’t have jobs or other relevant life experience might also be temporary, lasting only until they manage to get that experience.

Argentina and the German state of Bremen recently extended the franchise to people over the age of 16, irrespective of their knowledge levels. We should consider doing the same for at least those children who know as much about politics as the average adult. I don’t underestimate the practical difficulties of implementing this idea. For example, it may be very hard to come up with an unbiased knowledge test for aspiring child voters. But the issue at least deserves serious consideration. We should not continue to exclude millions of knowledgeable potential voters from the franchise, unless there really is no good way to avoid it.

I am not the first to advocate giving at least some children the right to vote. Harvard political scientist Paul Peterson has been making that case for a long time (albeit on somewhat different grounds). And columnist Michael Kinsley defended a similar idea in 2011. But Kinsley and Peterson are arguing that parents should be allowed to cast an extra vote for each of their children (though Peterson would give parents the option of letting the children make their own choices). This is a little like giving husbands the right to cast an extra vote for their wives, instead of letting married women vote for themselves. I say let knowledgeable children cast their own ballots.

Finally, it’s worth noting the commonality this post and my last one, in which I urged adult voters to consider not voting on issues they know little or nothing about. Knowledge, not age, should be the main qualification for exercising political power at the ballot box. We may understandably shy away from giving government the power to use knowledge tests to narrow the franchise. But it’s much tougher to argue against using them to expand it.

My forthcoming article, “Foot Voting, Federalism, and Political Freedom,” is now available on SSRN. The article is part of a symposium on Federalism and Subsidiarity in the interdisciplinary journal Nomos, which focuses on a different broad issue in political theory every year. Other contributors include a variety of big-name federalism scholars in legal academia and political science: Daniel Weinstock, Loren King, Judith Resnik (Yale), Steve Calabresi (Northwestern), Jenna Bednar, Andreas Follesdal, Vicki Jackson (Harvard), Sotirios Barber, Michael Blake, Ernest Young (Duke), and Jacob Levy (McGill).

Here is the abstract for my article:

The idea of “voting with your feet” has been an important part of debates over federalism for several decades. But foot voting is still underrated as a tool for enhancing political freedom: the ability of the people to choose the political regime under which they wish to live.

Part I of this article explains some key ways in which foot voting in a federal system is often superior to ballot box voting as a method of political choice. A crucial difference between the two is that foot voting enables the individual to make a decision that has a high likelihood of actually affecting the outcome. By contrast, the odds of casting a meaningful ballot box vote are vanishingly small. This reality both enhances the individual’s degree of political freedom and incentivizes him or her to make better-informed and more rational decisions. It is an important consideration in favor of greater political decentralization.

In Part II, I consider some possible limitations of foot voting in a federal system as a tool for enhancing political freedom. These include moving costs, the possibility of “races to the bottom,” and the problem of oppression of minority groups by subnational governments. Each of these sometimes poses a genuine constraint on effective foot voting. But none are as severe a limitation as critics claim.

Part III argues that the case for foot voting under federalism should be expanded “all the way down” to local governments and private communities, and “all the way up” to freer international migration. It builds on a growing recent literature that advocates granting greater autonomy to local governments relative to regions. Just as foot voting can be expanded all the way down to the local level, there is also a strong case for extending it “all the way up” to the international level. The potential gains from freer international foot voting in some respects dwarf those that can be achieved domestically. For people living under authoritarian regimes, foot voting through international migration is often their only means of exercising any political choice at all.

The utility of foot voting as a tool for exercising political freedom is not the only factor that should be considered in designing federal systems. But it deserves much greater consideration than it has so far received.

In a recent Slate column, John Dickerson points out that presidential elections typically focus too much on issues the president has little control over and too little on those that he has more effect on:

Nothing tests a president’s temperament like foreign affairs. Though this presidential campaign has only recently touched on the topic, the lack of focus points to another flaw in our election system. If we arranged our campaigns around what a president actually can control, we wouldn’t spend the majority of our time talking about the economy, where a president is a bit player.

Not so in foreign affairs. A president is the last word on decisions regarding military strikes, covert operations, or how to treat political prisoners. George W. Bush signed off on every prisoner that faced enhanced interrogation techniques. Barack Obama personally approves every drone strike of a high-value terrorist target. When the president serves as the country’s chief diplomat, he acts almost entirely alone.

Dickerson exaggerates a little when he suggests the president “acts almost entirely alone” on key foreign policy issues. But he certainly has much more control over them than over short-term economic trends. Yet the latter are the biggest factor in most elections. Voters also tend to ignore or underemphasize other issues that the president has a great deal of control over: issues such as judicial nominations and appointments to federal regulatory agencies.

Why are voters myopic in this way? Because, thanks to widespread political ignorance, most voters have difficulty telling the difference between issues that the president can affect and those he can’t. That’s why studies show that voters routinely reward and punish politicians for events they have little or no control over, including trends in the world economy, shark attacks and droughts, and even victories by the local sports team.

Voters would not do this if they were well-informed about politics and public policy. But for the vast majority, it’s actually rational to be ignorant, and to do a poor job of evaluating the political information they do know.

UPDATE: For those who want to argue that an Obama victory this year would prove that voters have given up overemphasizing short-term economic trends, I would point out that his performance in the polls is roughly on par with the predictions of economic models of presidential contests based on data from past elections.

In the 1980s, First Lady Nancy Reagan famously urged kids to “just say no” to drugs. Although I’m no fan of the War on Drugs, she was certainly correct to point out that saying “no” is a good way of avoiding the dangers of drug use. Co-blogger Eugene Volokh makes a similar argument with respect to violence intended to pressure Western nations into suppressing “blasphemous” speech. Giving in to the terrorists incentivizes further terrorism, while refusing to do so reduces the risk of future violence. This principle applies to terrorism more broadly: An excellent way to reduce the risk of attacks is to refuse to give in to the terrorists’ demands. Over time, a government that develops a reputation for saying no to terrorists is likely to suffer fewer attacks in the first place.

I. Why Terrorists Rarely Target Dictatorships.

Most terrorist attacks are undertaken in the hopes of extracting some sort of political concession from the targeted nation. The terrorists strike because they think they have at least a reasonable chance of achieving the desired result. Governments that refuse to give in suffer fewer attacks. The most striking evidence supporting this conjecture is that terrorists rarely target dictatorships. That certainly isn’t because dictatorships are so nice that few people have grievances against them. To the contrary, they usually generate far more grievances than democracies do.

For example, it is striking that there is relatively little Muslim terrorism directed at Chinese targets, despite the Chinese governments’ brutal repression of its Muslim minority. In the days of the Soviet Union, Muslim terrorism directed against that government was very rare, despite the invasion of Afghanistan and the USSR’s harsh treatment of its own large Muslim population. Even Osama Bin Laden didn’t engage in terrorist attacks against civilians when he fought the Soviets in the 1980s. The contrast with his tactics against the US is instructive. As Russia became more democratic in the 1990s, the growing conflict in Chechnya began to generate more terrorist attacks, which in turn declined again over the last few years, as Vladimir Putin has consolidated a more authoritarian regime in Russia.

The main reason why dictatorships rarely suffer terrorist attacks is that they rarely given in to terrorists. Potential terrorists know that terrorism directed at dictatorships is unlikely to pay. Obviously, dictatorships also have harsher security policies than democracies do. But that doesn’t explain why terrorist attacks rarely target even those dictatorships that have relatively weak security services, or aim at targets associated with authoritarian governments beyond their borders (where their ability to adopt repressive security policies is much weaker than at home). Western democracies’ embassies and citizens traveling abroad get targeted far more often than those of authoritarian states, even though the latter are comparably vulnerable to attack. Muslim terrorists and rioters rarely if ever targeted Soviet embassies in the 1980s or Chinese ones today, despite the many Muslim grievances against those two governments.

II. The “Just Say No” Approach to Preventing Terrorism.

Saying no has many advantages over alternative antiterrorism policies. Unlike defensive security measures, it doesn’t require much in the way of extra government spending or violations of civil liberties. It is also less costly than offensive military action against the terrorists and creates fewer collateral risks. One can argue that avoiding actions that anger terrorists in the first place is even cheaper. But as the current round of riots at US embassies and many other incidents show, all sorts of things can anger potential terrorists. And it is impossible for a free society to even come close to avoiding all of them. Moreover, if potential terrorists realize that we are preemptively trying to avoid doing anything that might give them offense, that in itself is likely to generate additional demands backed by threats of terrorist attacks if the demands are not met.

Obviously, saying no is far from a complete substitute for these other strategies. But it can incrementally reduce the need to resort to them. In the long run, that reduction can be quite large, since saying no can greatly reduce the incentive of terrorists to target the state in the first place.

Unfortunately, democracies – including the US and Israel – often do make concessions to terrorists. Changing this pattern is not easy. The reason why democracies are more likely to give in than dictatorships is, of course, that they place a higher value on civilian life, and public opinion sometimes pressures them into making concessions in order to secure the release of hostages.

In addition, saying “no” may create genuine moral dilemmas in cases where the terrorists have at least a partially just cause. For example, Chechen terrorists have some legitimate grievances against Russia; but they have also committed horrendous atrocities against civilians. In such cases, saying “no” requires continuation of unjust policies that should never have been adopted in the first place. That creates a potentially difficult tradeoff.

That said, most terrorists are not fighting for just causes, and the genuine dilemma posed by those who are should not be allowed to obscure the virtues of saying “no” to the many who are not. And while it may be difficult for democracies to commit to a consistent policy of saying no, the beginning of wisdom is to recognize the problem and the ways in which committing to no can help solve it. The idea that giving in to terrorists breeds more terrorism is not a hard one to grasp, and even rationally ignorant voters can come to understand it over time. Hopefully, both the general public and political elites will begin to learn the lesson.

NOTE: In this post, I use “terrorism” in the commonly accepted sense of attacks deliberately targeting civilians. Thus, the fact that insurgent groups often target the military and security forces of dictatorships doesn’t count against my thesis. Defeating an authoritarian state’s military can indeed force them to give in, while harming its civilians rarely will.

UPDATE: I should perhaps add that there is a difference between a policy of saying no to terrorism and a policy of never doing anything that any terrorist might possibly want us to do. There is a difference between doing X in order to convince terrorists to stop attacking us, and doing X for unrelated reasons of our own. In some cases, unfortunately, terrorists might mistake the latter for the former. That’s one reason why cases where terrorists have a just cause create a difficult dilemma. A government that takes actions that happen to coincide with the demands of terrorists, but does so for reasons other than a desire to appease them, needs to find a way to credibly convey the reasons for its actions. How best to do that is a difficult issue that I cannot address in a post that is already too long.

UPDATE #2: I recognize, as some commenters note, that the paper I cite for evidence that dictatorships suffer fewer terrorist attacks than democracies mostly attempts to explain variation in attacks between different dictatorships. But the first part of the paper summarizes extensive previous literature showing that dictatorships experience fewer terrorist attacks than democracies. The latter part does not contest this, but merely shows that some dictatorships experience fewer attacks than others and tries to explain why. I intended to rely only on the first part of the paper, the one that summarizes the previous literature.

UPDATE #3: I suppose I should note more explicitly that there have been cases of Muslim terorism in China. However, they are far less common than attacks directed at Western democracies. More generally, the point is not that dictatorships avoid terrorist attacks entirely, but that their incidence is much lower than that of attacks directed at democracies, even though the former create far more grievances among potential terrorists. A consistent policy of saying no can’t eliminate terrorism entirely. But it can substantially reduce its incidence.

Ever since the Arab Spring began, I have been concerned that it could ultimately result in the establishment of Islamist regimes as bad or worse than the more secular dictatorships they replaced. One of the reasons for that fear is that public opinion in many Arab nations is highly illiberal and intolerant. As a result, free elections could result in victories for authoritarian and repressive radical Islamists, as has indeed happened in Egypt. The new Islamist Egyptian President has already imposed media censorship and harrassment that activists consider to be worse than Mubarak’s was.

Unfortunately, the recent outbreak of violent riots in many Middle Eastern nations in response to an insignificant anti-Muslim Youtube video is a further indication of the problem. With the important exception of Libya, most Arab and Muslim governments have issued vitriolic condemnations of the video while either ignoring or only mildly criticizing the violent response to it.

In the absence of systematic polling data, it is too early to say what percentage of the population in these countries agrees that violent rioting is a justified response to “blasphemous” speech. But the tepid reaction of Arab governments to the violence suggests that such support is at least relatively common, even if not the view of a majority. And in Egypt, site of some of the worst violence, previous survey data shows that violent religious intolerance does enjoy majority support. For example, a 2010 Pew survey found that 84% of Egyptians believe that Muslims who convert to another religion should be executed.

It would be a mistake to say that such intolerance and illiberalism are an inevitable attribute of Islam. Like Christianity and Judaism, Islam is a centuries-old religion with many different variants, some of them more liberal and tolerant than others. I don’t believe that the radical Islamism is the “true” version of Islam, while liberal variants are somehow “fake.” There is no single true Islam, any more than there is one true version of Christianity. But it is clear that the versions of Islam that enjoy widespread support in much of the Muslim world are authoritarian and oppressive. And, in many countries, the purveyors of such intolerance have been empowered by the Arab Spring to a much greater extent than liberals.

None of this bodes well for the future of the Arab Spring nations. Obviously, public opinion is not the only factor that will determine the outcome. Political elites matter too, as do a variety of other factors. Unfortunately, however, in much of the Arab world, radical Islamists are far better organized than their more liberal opponents, which might enable them to seize and hold power even when majority opinion is not on their side.

Georgetown law professor Larry Solum has an excellent post summarizing the ongoing debate over the “countermajoritarian difficulty,” one of the most common criticisms of judicial review. Solum summarizes the “difficulty” as follows:

The counter-majoritarian difficulty may be the best known problem in constitutional theory... The counter-majoritarian difficulty states a problem with the legitimacy of the institution of judicial review: when unelected judges use the power of judicial review to nullify the actions of electedexecutives or legislators, they act contrary to “majority will” as expressed by representative institutions. If one believes that democratic majoritarianism is a very great political value, then this feature of judicial review is problematic. For at least two or three decades after [Alexander] Bickel’s naming of this problem [in 1962], it dominated constitutional theory.

In the rest of the post, Solum provides a very helpful summary of the major answers various legal theorists have developed to address the problem. I recommend the post to students and others who want to get a quick but helpful summary of the issue, along with some useful cites to the literature. It is a worthy addition to Solum’s extremely useful series of “Legal Theory Lexicon” posts.

My only reservation about the post is that it omits one of the most important and influential answers to the difficulty: John Hart Ely’s “representation-reinforcement” theory, outlined in his famous 1980 book Democracy and Distrust. Ely argued that judicial review can, in some cases, actually promote democracy by facilitating political participation. Obvious examples include judicial protection of the right to vote and the right to freedom of political speech. Such representation-reinforcing judicial decisions are not, Ely argues, countermajoritarian, because they ensure that the people can participate in the political process, which is what makes that process majoritarian in the first place.

Ely’s book has spawned a vast literature analyzing the concept of representation-reinforcement and its applications to specific legal issues, including my own 2004 article analyzing the implications of widespread political ignorance for Ely’s theory. Solum generously includes my article in his list of recommended readings in the post. But it would have helped to discuss Ely’s far more significant contribution, which was a major milestone in the debate over the countermajoritarian difficulty.

I should perhaps add that I am far from uncritical of Ely. I disagree both with his argument that representation-reinforcement is the most defensible (if not the only) possible justification for judicial review, and with some of his applications of representation-reinforcement to specific constitutional issues. Nonetheless, Ely’s work had a major influence on me. More importantly, it also had a huge impact on many others who have written about the countermajoritarian difficulty since 1980.