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My Pennumbra Debate over Democracy and the Constitution with Sanford Levinson:

The University of Pennsylvania Law Review's Pennumbra website has recently posted a debate over "Democracy, Political, Ignorance, and Constitutional Reform," between University of texas law Professor Sanford Levinson and myself. Levinson is a prominent constitutional theorist, and also known to many of our readers for his blogging at Balkinization.

Levinson and I both worry that democratic control over government policy has eroded in the current constitutional system for various reasons, including widespread political ignorance. However, we disagree over the solutions to this problem. Levinson contends that we need an extensive revamping of the current Constitution to make it more democratic. In my view, a better approach would be to reduce the size, scope, and complexity of government, which would make it easier for voters to acquire sufficient knowledge to keep track of what their representatives are doing. I also argue that the combination of political ignorance, war, and economic crisis make this a dangerous time to undertake major constitutional change. The combination of fear, ignorance, and political manipulation thereof could yield a worse system than the admittedly flawed status quo.

Bruce_M (mail) (www):
How about making some effort at having decent education. Democracy cannot work when We The People can't do basic math and spend our days watching 8 to 10 hours of "Celebrity Bassfishing" and "Dancing with Celebrities" and "Celebrity Weightloss" and "Basketweiving with the Stars."

Less complex government will never happen. Government always becomes more complex over time - it's entropy in action.

When a rocket scientist has a better chance of getting laid than an illiterate rapper, there will be hope for education. Being intelligent used to mean something, now it's a liability. The whole Republican Party and Bush Administration were based in large part on being dumb, acting dumb, and appealing to the dumb, because the "reality based community" (as they put it) are a bunch of "elitists". Sarah Palin is actually a contender for POTUS. She's already governor of a state, when she's blatantly unqualified to be Miss Congeniality.

My prediction is that America will collapse by the end of 2010. By "America" I mean the federal government. There will be a quiet collapse and the states will be left as their own countries, they will form unions with each other and eventually, within 50 years or so, there will be nothing left but dust and churches.

The fact that education doesn't matter and that intelligence has become both sexual and political disadvantages are absolute bars to the continuation of a society, let alone a democracy.

This is a problem without a solution.
4.2.2009 10:48pm
/:
More democratic? Meaning more responsive to the populace's fads? Which means more responsive to government's own feedback (see New Deal, Great Society, etc)? Isn't that what the republican form of government, including the repealed indirect election of state senators to Congress, supposed to prevent?

Diffusion of power is not your enemy; that issue is mostly orthogonal to the real problem when the majority of our society is, in the not-very-short term at least, in favor of the totalitarian style of government.

See Bruce_M's comment for an example of that: the totalitarian and populist mode is made implicit, leaving game shows his own frame of reference. Government officials are not representatives to him, but "leaders." This is a dangerous situation.
4.2.2009 11:02pm
FlimFlamSam:
Re the post below this one, why does Lindgren end with a question and not enable comments? Lame.
4.2.2009 11:11pm
Curt Fischer:

I also argue that the combination of political ignorance, war, and economic crisis make this a dangerous time to undertake major constitutional change.


Ahh, of course. And conversely, in nations that enjoy peace, economic prosperity, and political awareness, everyone will be saying "Finally! We can revise that constitution, under the yoke of which our country became....a land of peace, economic prosperity, and political awareness. It's about time".
4.2.2009 11:33pm
Gerard Magliocca (mail):
Ilya,

May I ask you a question? Consumers, to use your parlance, suffer from "market ignorance." In other words, they actually know little about the products they buy and use shortcuts, such as trademarks and advertising, to make decisions. Does it follow from this that the results produced by the marketplace are suboptimal? Or that we should make consumer choices simpler so that people will have more information about the products they buy?

If the answer is no, then why is political ignorance different? Why aren't the available heuristics (party brands, media attention) for voters adequate?

Thanks. Hope all is well.

Gerard
4.2.2009 11:37pm
Tim Kowal (mail) (www):
I tried, really tried, to read Levinson's book, "Our Undemocratic Constitution." It's just so terribly silly. But I'm troubled that Illya's post leaves me with the same basic question as Levinson: why accept without any explanation (or with, for that matter) that we need more democracy? Some of our nation's greatest troubles could be argued to stem from precisely the opposite cause.
4.2.2009 11:47pm
Betty1 (mail):
How about instead of dumbing down the government to meet the average educational level of Americans, we instead improve the educational opportunities available and increase political awareness? I don't think it's wise to restrict the government merely to allow people to better understand political and regulatory complexities... let's just improve the quality of our electorate. Win/win in my opinion.
4.3.2009 12:00am
David Welker (www):

In my view, a better approach would be to reduce the size, scope, and complexity of government, which would make it easier for voters to acquire sufficient knowledge to keep track of what their representatives are doing.


This would do nothing to change the logic of rational ignorance. The reason people are ignorant of government policy is not primarily because it is too complex, but instead because they simply have no incentive to learn about it.

To the extent that government plays a less important role, people have even less incentive to learn about it.

Overall, just because you constantly repeat yourself, doesn't mean you have a point. Oh, how shocking! Somin has, once again, come up with another "reason" for smaller government. It always is the same conclusion. Can you say broken record.

The reality, as the financial crisis has demonstrated, is that people are also ignorant of private sector actors that matter to their financial well-being.

Here is a better solution to ignorance about both government and important private sector actors. More government funding for education.

Imagine that. Instead of pretending like the problem is the world is too complex (and it isn't ever going to get simpler) we should better educate people so that they are interested in and understand the complexity of the real world.
4.3.2009 1:17am
/:
To the extent that government plays a less important role, people have even less incentive to learn about it.

That is the end goal, of course. I shouldn't have to care because it shouldn't be affecting me in the way that it is. How is this a flaw in Somin's reasoning?

Here is a better solution to ignorance about both government and important private sector actors. More government funding for education.

Yes, but probably in the exact opposite way you think it would happen.
4.3.2009 1:41am
David Welker (www):
Here is another point. One way we could reduce the complexity of government is to reduce the role of the states. I mean, citizens have to keep track of both the Federal government and the State government they live in. If we reduced the role of the states, then citizens would have less to keep track of.

Somehow, I suspect that Somin would not think that dramatically reducing the role of the states was a good idea. So much for his desire to simplify.

It should be further pointed out that a lot of the complexity of government arises from the complex system of checks and balances we have established to preserve liberty. A system based on the discretion of a ruling class instead of the rule of law would definitely be much less complex. Not a good thing.

Query: Is political ignorance more severe in the United States or Europe? I don't have an answer for this empirical question. But, I suspect the answer is that political ignorance is more severe in the United States. But, in much of Europe, the government actually plays a larger role in society.

Another question. Would you rather have lived during the founding era when government was supposedly much less complex. Let us see. We had slavery. Shorter life-spans. Much less economic well-being for non-elites. Hmm... it appears that simplifying government may not be the key to the good life. And anyway, do we have reason to believe that the average citizen was actually more informed of the actions of government at the time? After all, we do know that people were much less educated. Further, the government was was still fairly complex.

Here is something else to keep in mind. The same theory that asserts that it is "rational" for citizens to be ignorant (and I think it is anything but rational) also asserts that it is "rational" to decline to vote.

But, people still vote.

Thank goodness for "irrational" people who take the time to vote and educate themselves!

And thank goodness for public-minded politicians who actually care as much about the public interest as their self-interest. Yes, despite the cynical know-it-alls (or rather assume-it-alls) who think that "rational" politicians are only interested in maximizing their own selfish interests, the reality is that this country has been blessed with many politicians (also known as statesmen) from George Washington, Alexander Hamilton, Thomas Jefferson, Abraham Lincoln, to Barack Obama that have not been primarily driven by self-interest.

George Washington was not looking to maximize his self-interest when he decline to become a dictator for life at the conclusion of the Revolution. And there have been many political leaders since then who have done the right thing.

Maybe, just maybe, the cynicism that underlies libertarians and their public choice theory is a bunch of bull.

After all, if these cynical views were correct, we would have been screwed long ago.

Despite the supposed irrationality of voting, citizens vote. Despite the supposed irrationality of gaining political knowledge, a subset of the population gains political knowledge and communicates problems they observe to everyone else. Despite the supposed irrationality of being concerned with anything other than self, this country has had more than a few politicians who have acted as statesmen.

So, Somin can be a cynical broken record all he wants. The bottom-line is that we continue to live in an extraordinary country despite the imperfections and despite the fact that our government does have before it complex missions to accomplish. Luckily, human beings are not as "rational" (i.e. selfish) as libertarians would like us to believe.
4.3.2009 1:54am
subpatre (mail):
David Welker says, "Here is a better solution to ignorance about both government and important private sector actors. More government funding for education. Imagine that. Instead of pretending like the problem is the world is too complex (and it isn't ever going to get simpler) we should better educate people so that they are interested in and understand the complexity of the real world."

Imagine that indeed! Mo' money, at a time when the amount of money allocated to education is the highest ever. Imagine that! When there is no evidence supporting 'mo money equals mo education'.

The money truck for the public education lobby is out of gas. Alternatives are repeatedly proving they can provide better (more comprehensive, more advanced, etcetera) education with a fraction of the cash the public cartel requires.

Overall, just because you constantly repeat yourself, doesn't mean you have a point. Oh, how shocking! Somin Welker has, once again, come up with another "reason" for smaller bigger government. It always is the same conclusion. Can you say broken record.
In this case, the broken Welker really is broken, contradicting its own logic within two paragraphs as to people's 'incentive to learn'.
4.3.2009 2:02am
Oren:

let's just improve the quality of our electorate.

Human beings are not clay to be molded or products to be "improved".
4.3.2009 2:12am
David Welker (www):

That is the end goal, of course. I shouldn't have to care because it shouldn't be affecting me in the way that it is. How is this a flaw in Somin's reasoning?


Of course that is the end goal. But that is simply Somin's own idiosyncratic substantive political preference.

This argument about political ignorance isn't supposed to be substantive. It is supposed to be procedural. The argument goes: Whatever the merits of government action, all other things being equal, less is better because a smaller government is easier to monitor.

But the reality is that an uneducated population won't monitor a smaller government either. So, it doesn't matter if in theory it is easier to monitor. (And any government if it has the basic police powers that libertarians advocate, would be a potentially dangerous government if unchecked. The governments that existed at the Founding probably put more people to death for more crimes and had less procedural protection for criminal defendants.)

The reality is that the argument about political ignorance is a distraction. It isn't really sincere. Regardless of the problem of political ignorance, Somin would advocate for his substantive goal of smaller government. He is just trying to give us a slant on this particular problem that supports his preordained conclusion.

With many libertarians, the answer for any multiple choice test question is always C. (The answer is smaller government.) The only thing that varies is the exact contours of the argument that leads to the same predictable conclusion.
4.3.2009 2:13am
David M. Nieporent (www):
May I ask you a question? Consumers, to use your parlance, suffer from "market ignorance." In other words, they actually know little about the products they buy and use shortcuts, such as trademarks and advertising, to make decisions. Does it follow from this that the results produced by the marketplace are suboptimal? Or that we should make consumer choices simpler so that people will have more information about the products they buy?

If the answer is no, then why is political ignorance different? Why aren't the available heuristics (party brands, media attention) for voters adequate?
1. To say that consumers "actually know little about the products they buy" is true at most only the first time they buy a particular product. Afterwards, they know how the product actually worked.

2. Political ignorance is different because political ignorance is rational and "market ignorance" is not. It makes sense to learn about the products you buy because your decisions about what products to buy affects you directly, and you can effectively make a choice if necessary.

If you only had a 1-in-1 million chance of being able to choose a different product -- that is, if 99.99% of the time, your decision to switch brands was ineffective, and you ended up with the same brand anyway -- then you wouldn't bother to learn about the features of the various products.
4.3.2009 2:17am
David Welker (www):

Human beings are not clay to be molded or products to be "improved".


I call bullshit. Of course they are.

People need to be taught morals. They need to be taught to respect one another and work together. They need to be educated.

End of story.

And it is precisely because you respect human dignity that you teach Tommy, no he can't steal from Joe or hit Sally. He needs to learn to work in groups. And yes, he needs to learn that our government has three branches and so-and-so is how laws are made.

And there is no doubt that after this education, Tommy will emerge a different person than he would be otherwise.

If the idea of education is offensive to you, you are deeply radical.
4.3.2009 2:17am
David Welker (www):
subparte,

Actually, I am not for bigger government for the sake of bigger government like libertarians are for smaller government for the sake of smaller government.

In fact, I favor the market in many contexts. For example, I support the idea of vouchers. I also think that markets work extraordinarily well for the provision of consumer products. (With appropriate regulations to ensure health and safety, of course.)

With respect to money for education, I have no doubt that more could be helpful if used properly. I think that a lot of these undisciplined and unmotivated students really should be shipped off to some sort of military boarding school, because they need discipline and take their education for granted. That would cost money. Also, I have some experience teaching. And you know what, you try controlling a ton of students who are not necessarily inclined to be well-behaved and only then do you really have a right to have the opinion that class size doesn't matter.

Do you think you can give students the same amount of individualized attention in larger classes? Guess what. You can't. Funding matters. It is hardly the only thing that matters. But it does matter.
4.3.2009 2:26am
David M. Nieporent (www):
This would do nothing to change the logic of rational ignorance. The reason people are ignorant of government policy is not primarily because it is too complex, but instead because they simply have no incentive to learn about it.
Those are not two independent factors. Half of the reason that they have no incentive to learn about it is because their individual vote isn't likely to matter, but the other half is because the cost of acquiring that knowledge is too high. And it's too high because government does too much. In order to effectively cast a fully-informed vote you would need to know about education policy, health care policy, energy policy, drug policy, etc. You would have to substantively understand these issues and you would have to know where each candidate stood on each issue (and, more importantly, what each candidate's actual record was on each issue).

On the other hand -- to pick an ideal situation -- if government's role is limited to banning murder, rape, theft, fraud, arson, assault, etc., and to protecting the borders from foreign invasion, then learning what you needed to know in order to cast an informed ballot is much easier. You need to know about fewer things, and moreover, it's easier to know if what the government is doing about those things is working.
4.3.2009 2:34am
David Welker (www):

If you only had a 1-in-1 million chance of being able to choose a different product -- that is, if 99.99% of the time, your decision to switch brands was ineffective, and you ended up with the same brand anyway -- then you wouldn't bother to learn about the features of the various products.


Not true. Even in cases where you have little alternative, you would still want to learn about the features of products so that you could use them better.

A lot of people might be required to use Microsoft Windows (or Mac OS X or Linux) as their operating system for their work computer. They do not necessarily always have a choice. Nonetheless, they may put a lot of effort into learning about the features of the operating system.

With respect to your larger point, I sort of agree with you. People do have some incentive to become knowledgeable about consumer products. (Of course, a lot of people will just ask someone else they think is knowledgeable about what they should buy -- and no, it is not always easy to really know what your experience would have been like if you had bought that Canon printer instead of that HP printer. So the feedback loop is not perfect, especially for less common purchases. In contrast, we are all in a position to know where we prefer Coke to Pepsi or vice-versa. But, it should be noted, that the decision to buy Coke instead of Pepsi also isn't a very important decision.)
4.3.2009 2:36am
David Welker (www):

On the other hand -- to pick an ideal situation -- if government's role is limited to banning murder, rape, theft, fraud, arson, assault, etc., and to protecting the borders from foreign invasion, then learning what you needed to know in order to cast an informed ballot is much easier. You need to know about fewer things, and moreover, it's easier to know if what the government is doing about those things is working.


Have you ever worked in a prosecutor's office? These criminal matters are anything BUT simple. They are not easy to understand and the average person does not understand them.

Generally speaking, People do not understand how the criminal law works in practice, much less are they able to effectively monitor it.

This utopia where the average citizen is actually capable of monitoring the government without relying on some sort of division of labor is pure fantasy.

In reality, the system works quite well despite political ignorance. It is the same with products that people buy. Not everyone who buys a computer is an expert in computers. But that is okay. They can still make a fairly good decision by reading some reviews on the Internet or asking someone knowledgeable whom they trust. Even with making purchasing decisions in private markets, we must rely on a division of labor to process information and make a good decision. And with some major purchases, we are not able to repeat it often.

It is the same with political decisions. No one is an expert on everything the government does. But, a division of labor allows fairly good decisions to be made in many contexts regardless. Which isn't to say that it is perfect. But then, nothing is perfect.

But, let us imagine the hypothetical minimal watchman state. Government would still be complex and powerful (after all, it would have the power to put people to death.) Government would still be dangerous. And we would still need to rely on a division of labor to monitor government.

Look, these arguments about political ignorance might sound superficially good. But they are not fooling anyone with half a brain. These are just a seemingly neutral procedural face for the substantive political preferences you would advocate for regardless.
4.3.2009 2:49am
Dogman Dave (mail):
The word is spelled "penumbra" not "pennumbra."
4.3.2009 7:49am
BZ (mail):
Those who are interested in the difference more money makes in education, particularly of those whose educational achievement is geared toward specific government assistance programs, should look at the briefings in the current Supreme Court case, Horne v. Flores:

ABA Listing of Briefs

Leaving aside standing and procedural issues, the case involves two questions: 1) does the 9th Circuit have the power to force the Arizona Legislature to appropriate more money for education of English-Language Learners? and 2) has the enactment of "output"-oriented goals in the No Child Left Behind Act modified a State's obligations under the "input"-oriented Equal Educational Opportunity Act?

A lot of the big players are involved. Arguing will be Sri Srivanasan and Ken Starr.
4.3.2009 8:54am
David M. Nieporent (www):
David W: your repeated boilerplate allegations of bad faith are not only impolite, but they're both wrong and illogical. While some libertarians come to that position from a natural rights perspective, other people are libertarians simply because they believe government to be ineffective and inefficient; people in the latter group do not fit your stereotype.

Moreover, even if your accusation applied to all libertarians, it would still be an ad hominem. The fact that someone might prefer small government on principle does not refute his claim that government is ineffective for one reason or another, such as ignorance.
4.3.2009 9:19am
David M. Nieporent (www):
As for your substantive claims, I beg to differ; these laws are not complicated at all. Certainly the nuances of whether, e.g., a particular crime is second degree murder or voluntary manslaughter may sometimes be subtle. But few people have trouble comprehending the essence of murder, and conforming to the law.

Most people don't understand criminal procedure, to be sure, but they understand the substance of the laws. (The sorts of laws I itemized, I mean, not all criminal laws. Our criminal codes have become just as bloated as our civil laws, to the point where it's impossible to predict in advance what an overzealous prosecutor will do. Perfect example being the Lori Drew case that Orin has blogged so much about.)
4.3.2009 10:07am
CJColucci:
Moreover, even if your accusation applied to all libertarians, it would still be an ad hominem. The fact that someone might prefer small government on principle does not refute his claim that government is ineffective for one reason or another, such as ignorance.

Well, yes, but the ad hominem is a fallacy only if it is intended as a criticism of an argument. If it is intended as a criticism of the arguer, then there is nothing fallacious about it at all -- though it could, of course, be incorrect.
4.3.2009 10:40am
Calderon:
Gerard Magliocca said


Consumers, to use your parlance, suffer from "market ignorance." In other words, they actually know little about the products they buy and use shortcuts, such as trademarks and advertising, to make decisions.


I'm skeptical that consumers are all that ignorant, especially for major purchases. You can test drive cars, see and hear TVs, play around on computers, walk through homes and have someone you hire inspect them. Even for less important items, you can try on clothes, can sometimes taste test products, etc. I'd say people have more accurate information about consumer goods than what politicians are going to do.

But of course, the analogy is somewhat silly. Your toaster isn't going to start up one day and force you to give it 20% of your income, or start keeping track of the books you check out of the library, or imprison for smoking pot, etc. If you're ignorant of consumer products and don't get what you want, then at worst you've wasted some money. If you're ignorant of politicians and don't get what you want, the consequences can be a lot more dire.
4.3.2009 10:45am
Paul Zrimsek (mail):

If it is intended as a criticism of the arguer, then there is nothing fallacious about it at all -- though it could, of course, be incorrect.


"Incorrect" is too kind a word here. To imply that there's something underhanded about coming up with additional reasons for a position instead of stopping after the first one-- surely this is the emptiest criticism in the entire history of criticism?
4.3.2009 10:58am
ShelbyC:

This would do nothing to change the logic of rational ignorance. The reason people are ignorant of government policy is not primarily because it is too complex, but instead because they simply have no incentive to learn about it.



Hell, I'd say they were both primary reasons. Even the politicians were ignorant of what was in the bailout bill, not because of a lack of incentive, but because they didn't have time to read it. If even the politicians are ignorant of what they're voting on, what hope does a normal guy have?

And education isn't the reason we are politically ignorant? How much education would somebody need to understand all the areas that the feds involve themselves in? You could get a phD in econ without fully understanding the effects of economic and fiscal policy, but when would you find time to learn about issues like flood control in the Mississippi basin or National Defense procurement?
4.3.2009 11:12am
Paul Zrimsek (mail):
Of course if lack of incentive to gather information is the problem, better education will do nothing to correct that. Unless the idea is to overcome the incentive problem by force-feeding people the necessary information directly-- in which case limiting the scope of government will help after all, by reducing the amount of information we need to be force-fed.
4.3.2009 11:21am
/:
People need to be taught morals. They need to be taught to respect one another and work together. They need to be educated.


Yes. By anyone except the government, which gives its members the incentive to bundle the fasces for undesirable purposes; and not by force, outside of familial guardianship. Surely I didn't have to spell that out, did I?
4.3.2009 11:31am
ys:

Dogman Dave:
The word is spelled "penumbra" not "pennumbra."

This is a project of University of PeNNsylvania, sir. Please, check the link in the posting. Your erudition is admirable, but cleverer minds reign over there.
4.3.2009 4:14pm
Oren:

People need to be taught morals. They need to be taught to respect one another and work together. They need to be educated.

They don't need to do anything they don't want to. Surely, it's in their benefit to learn to work together, but that's not quite the same.


And it is precisely because you respect human dignity that you teach Tommy, no he can't steal from Joe or hit Sally. He needs to learn to work in groups. And yes, he needs to learn that our government has three branches and so-and-so is how laws are made.

No, I respect human dignity by telling Tommy that Joe and Sally have the right not to be hit and that those do hit will be forcibly prevented from doing so. The rules are the same irrespective of any intellectual concepts Tommy has (or has not) assimilated.

If he wants to inquire further, I'm all for explained it in as much depth as I can. He can go to a liberal arts school and get the whole rundown on civilization since the dawn of time (I sure did) but none of that changes the basic mechanics of how things work.


If the idea of education is offensive to you, you are deeply radical.

For christsake, I'm a research scientist working in an university. You think I have a problem with education?

I have a problem with the notion that we can create better people. People are people. People will be people. Every attempt to change that fact has ended in absolute calumny.
4.3.2009 11:57pm

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