Courts as Modern Civic Churches?

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.

Turkey at the start of one-man rule

1. Yesterday (Monday) Recep Tayyıp Erdoğan took office under the system of executive presidency, which gives him arbitrary personalised powers, based on the claim that a system of such extreme powers for one person is the most democratic system if that person is elected. The changes came about as the result of a referendum last year, which gave a narrow victory for the constitutional changes. It seems to me, and many others, that rigging allowed victory in the election. For the first time in Turkey, all ballot papers unstamped by an electoral officer were counted, allowing unlimited fraud. There are other issues about intimidation and irregularities, but this is not the moment to go into further detail, but I will just point out that radical changes to the constitution were ‘legitimised’ by pseudo-democratic fraud.

2. The constitutional changes enable the President to: legislate by decree, appoint most Constitutional court judges, appoint the army chiefs, appoint police chiefs, appoint all higher level members of the bureaucracy, appoint government ministers and vice-presidents without reference to the National Assembly. There is no Prime Minister. The President, Vice-Presidents, and Ministers are not obliged to answer questions in the National Assembly. In principle the National Assembly can reverse decrees as laws, but to allow the President to legislate in such an unaccountable way in the first place undermines all understanding of what a national assembly is for and what the limits on the head of government or head of state (now the same person) should be in a state which is constitutional and democratic.

3. Ministerial appointments have most notably included the elevation of Erdoğan’s son-in-law, Berat Albayrak, to the Ministry of Treasury and Finance. Albayrak is a major businessman whose rise in business and then politics have taken place since Erdoğan became the most powerful man in Turkey in 2002.

4. Other appointments have given business people ministerial posts for areas of the economy in which they have a dominant market position. Erdoğan’s own family doctor who owns a medical business is health minister. The education minister owns a private college.

5. The appointments of business people and a son-in-law show carelessness about propriety in the separation of the administration of public affairs from private and family interests, to put it in the mildest way possible. It also suggests that Erdoğan thinks he is too big for the party which brought him to power, AKP. It has been clear for some time that the most powerful people in the AKP are this son-in-law and one of the sons. That is, the AKP exists as a vehicle of one family, and its businesses associates. In this case, it is hardly a properly functioning democratic party.

6. The appointments were preceded by a presidential decree on the appointment of the governor and vice-governors of the central bank, which reduces its autonomy and makes it more vulnerable to Presidential pressure. Erdoğan has clearly been struggling to live with central bank decisions to raise interest rates in response to inflation and the falling value of the Turkish Lira. Anyway, the currency lost 20% of its value and inflation is at nearly 16% though the central bank’s target is 5%.

7. Market confidence in Turkey, even of a very minimal kind, was resting on one man, Mehmet Şimşek, who has western training in economics and is the last remnant of the days when the AKP appeared to many to be a centre-right reformist party, and did manage to behave in part like such a party. Şimşek appears to have been increasingly unhappy with his situation, putting a rational face on polices he knows are going in the wrong direction, occasionally winning battles to raise interest rates. One of Erdoğan’s main obsessions is that interest creates inflation. He has found it necessary to curtail that belief on occasions. Şimşek apparently wanted to resign from government recently, but no one ‘betrays’ Erdoğan in that way. Şimşek was bullied into staying and has now been sacked. His replacement is Erdoğan’s son-in- law. The markets have been spooked and the lira fell very sharply yesterday evening.

8. The Erdoğanists do have a solution to lack of international market confidence in Turkey. It is to create a Turkish ratings authority which will rate Turkish government credit as the government wishes! This absurd proposal, which will only reduce the credibility of the lira and government debt, shows the depths to which economic policy run on political paranoia has sunk in Turkey. Political paranoia because low credit ratings are due to foreign conspiracies!

9. Going back to last month’s election, about 2% of ballots cast have been declared invalid by the Supreme Electoral Council. HDP (Kurdish rights and leftist party) has pointed out that most ‘invalid’ ballots are from polling stations where it did not have observers. The HDP is defined as ‘terrorist’ by the followers of Erdoğan and its presidential candidate is in prison on ‘terrorism’ charges. This is all based not on credible evidence of co-operation with the PKK, which does have common roots with HDP, but on absurdly broad definitions of terrorism which take in people who do not oppose the PKK enough or which offer any criticism of state policy towards the PKK.

10. Based on point 9, it looks very much like 2% of votes cast were spoiled to take votes from the HDP. It hardly seems likely that would be the limit of fraud. As mentioned in point 1, all ballots were counted which did not have the basic security guarantee of a stamp from an electoral official on the ballot itself or the envelope containing the ballot. It is inherently difficult to arrive at accurate figures in this matter, but it looks very much like at least 4% of the ballot was fixed (that would merely double the most obvious form of rigging, which I do not think is an extravagant assumption, after all most rigging will take place in very hidden ways). If I am correct then the pro-Erdoğan electoral list for the National Assembly did not get a majority of votes and Erdoğan did not get a majority of votes in the presidential election.

11. The government-state machine extends claims that the HDP is terrorist to the main opposition party, CHP, on the grounds that the CHP has offered some criticisms of the detention of the HDP presidential candidate, and that some CHP supporters voted HDP to help it overcome fraud and reach the 10% of votes necessary to enter the National Assembly. CHP provincial leaders have been banned from attending the funerals of soldiers killed by the PKK, soldiers who in some cases will be CHP supporters, showing the kind of spite, vengefulness, and abuse of state power driving the AKP.

12. The Istanbul municipal government has announced that public transport will be ‘only’ half price during next month’s Kurban Bayram (Sacrifice Festival; religious festival and public holiday) instead of free as has been normal for a long time. This shows the strains that public finances are under in Turkey. The AKP are specialists in providing ‘free’ benefits to electors, along with favours for individuals and families, building up a base in local government in this way before they came to power nationally. The Istanbul news is a small thing in itself, but is suggestive of a decline in the capacity of the AKP to use public money to buy votes.

13. Given increasing personal indebtedness, rising inflation, the falling value of the currency, the decline of foreign investment and the credibility of government debt instruments, we could see some very difficult economic times in Turkey. It is clear that this process was important in holding the recent election 18 months early. The loyalty of the AKP and Erdoğanist base is intense, but was formed at a time of economic growth and expanding public services. We see going to see what happens to loyalty in less happy circumstances.

Israelis Kill Unarmed Palestinians in Gaza

The Israeli Defense Force is killing unarmed demonstrators in Gaza. The Defense Force is on one side of the fence, the demonstrators on the other. What happened is that the ruling political party in Gaza, Hamas, sent the demonstrators to try and breach the fence separating Gaza from Israel. The declared purpose was to have Gaza Palestinians exercise their “right of return.” Hamas means the “right” of Palestinians to return where their forebears used to live, or maybe not, or nearby, etc, right inside present-day Israel. Of course, if Israel allowed this, Israelis might just as well start packing. It would be the end of the Jewish state that already has about 1.85 million Muslim and Christian Arab citizens. Both Palestinians and Israeli Arabs reproduce faster than Israeli Jews, by the way. (It’s the Jews’ fault, of course; they should get busy.) Hamas generously would allow Jews of Middle Eastern origin to remain as second-class, tribute-paying dhimmis. All the others, the majority, would have to leave quickly. Ethnic cleansing is the best scenario if Hamas wins, according to Hamas. The worst? Hamas does not say.

The mid-May 2018 demonstration was presented as a way to commemorate what Palestinians call “the disaster “– meaning the creation of Israel and the wholesale defeat the Arabs suffered in the war they had started against the new state. Initially, it had nothing to do with the inauguration of the new American Embassy in Jerusalem. It was mostly the Amerileft media that created a link with such devices as showing the inauguration in Jerusalem on a split screen with the rioting in Gaza. Many Americans, some of whom can’t place the US on a world map, would have believed that Palestinians were dying while the Americans and Israelis were gaily drinking champagne right next door.

The Israelis had warned early on that they would shoot demonstrators who tried to breach the fence separating Israel from Gaza. They did, killing about 70 Palestinians. That’s harsh but no one can call it unfair: They said it clearly: If you touch our fence, we will kill you. Don’t touch the fence, I would say. Little detour: the magazine Commentary pointed out that the Gaza authorities claim that 1600 Gazans were wounded by real bullets. What’s wrong here is the ratio of wounded to killed, 1600/70. It should be something like 1600/500 . It does not add up or else, the Israelis snipers are real bad at their job. Go figure!

Hamas thinks it’s winning because of the large number of unarmed demonstrators, its youths, wounded and killed. It’s been acting like this forever. Just a week ago, Gazans (who may have been Hamas agents or not) deliberately destroyed the valve to the main pipeline supplying Gaza with diesel fuel. The more misery ordinary residents of Gaza suffer, the happier the Hamas government is because Israeli atrocities give it standing among the ill-informed and mindless everywhere. I am tempted to feel sorry for Gazans myself because of the terrible government they live under. I can’t quite do this; below is why.

Hamas was elected in proper well observed elections. Although the Hamas government is well overdue for a new election, I would argue that the initial election makes Hamas one of the most legitimate governments in the Middle East. Hamas is explicitly an Islamist party. It does not think well of freedom of religion. It wants to impose sharia but does not feel strong enough yet. Hamas is in favor of polygamy. Young Gaza Palestinians are dying because of actions encouraged by their government, the Hamas government. Their parents properly elected that government. There has been no rebellion against it. The mass of the population seems loyal.

Hamas is insuring an aggravation of a situation in Gaza that is pretty much intolerable already. Israel left Gaza unilaterally 15 years ago but it maintains a partial blockade of the territory. It provides fuel and electricity and most of the water available, on its terms. It allows certain merchandise in but not others. Cement is limited, for example, I read in a source I can’t quote now but that I found credible at the time that Israeli Customs allow in milk and sugar but not instant coffee – which makes life more enjoyable. There is almost no work in Gaza, except working for the Hamas government. Nevertheless, no one there is starving because the territory is largely on welfare. Gaza has one of the highest educational achievement scores in the world although there is malnutrition there.

Gaza is a welfare non-state. It has no industry and very little else by way of earning its living. (That’s in part because of Israeli control over its borders, of course.) It’s an economic ward of the UN and secondarily of the European Union and of the USA. American Jews are thus among those supporting through their taxes riots where the main demand is “Death to the Jews!” The Leftmedia does not seem to be willing to mention, or it actually does not know, that the Israeli blockade of Gaza would be ineffective, almost useless, if Egypt did not join in. Yes, Egypt is also impeding the movement of goods, funds, and especially of people between itself and Gaza. And the PLO, which rules the West Bank, the other part of Palestine, has its own punitive measures against Gaza. Hamas is everyone’s favorite!

If you too feel revolted by the Israeli killings of Gaza demonstrators, and if you don’t think that righteous indignation is its own reward, I invite you to take two minutes to answer the following simple and sensible question:

Suppose you have a chance to advise the Israeli Prime Minister; suppose further that you have reason to believe that he will pay attention to you; what’s your advice to him regarding the present situation in Gaza (mid-May 2018)?

You can be sure that I have answered the question myself.

PS I am not Jewish, never have been, never will be. I am not a fundamentalist Christian either.

The Impossible Trinity of Liberal Democracy

In the first part of my series on democracy published a few years ago, I made a distinction between four senses in which the term “democracy” is used. To briefly recap, I made they were: a) a term of empty political praise for policies which partisans like b) an institutional decision-making process emphasizing the primacy of majoritarian opinion c) a generic term for the type of procedures which have been prevalent in the west, and d) an overarching term for the ethical commitments of liberals. In that series, I focused on the tension b) and d), mostly ignoring a) and c). (For Present purposes, my highly speculative musings on anarchism are irrelevant.

In a recent podcast of the Ezra Klein show  (which I highly recommend) discussing his book The People vs. Democracy: Why Our Freedom Is in Danger and How To Save It, Harvard political theorist Yascha Mounk and Ezra Klein were debating how pessimistic we should be about the prospects for the future of American Democracy. I don’t really wish to comment on whether we should be pessimistic or not, but I want to make a further distinction that clarifies some of the disagreements and points towards a deeper issue in the workings of democratic institutions. I will argue that democracy consists of a liberal, majoritarian, and procedural dimension and these dimensions are not reconcilable for very long.

Mounk makes a similar distinction to the one I made between democratic majoritarianism and liberalism as a reason to be pessimistic. Klein tended to push back, focusing on the ways in which modern American political culture is far more ethically liberal than it has ever been, as seen through the decline in racism since the middle of the twentieth century and decline in homophobia since the 1990s. Mounk, however, emphasized how respect for procedure in the American political process has declined during the Trump Era, as evidenced by Trump’s disrespect for the political independence of courts and agencies like the Department of Justice.

However, throughout Klein’s and Mounk’s debate, it became clear that there was another distinction which needed to be made explicitly, and one which I have tended to heavily under-emphasize in my own thinking on the feasibility of democracy. It seems to me there are at least three dimensions by which to judge the functioning of democracies which are important to distinguish:

  1. Majoritarianism—the extent to which a democracy is sensitive to majority public opinion. Democracy, in this dimension, is simply the tendency to translate majority opinion to public policy, as Mounk puts it.
  2. Liberalism—this refers to the ethical content towards which democracies in the west try to strive. This is the extent to which citizens are justly treated as moral equals in society; whether minority religious freedoms are respected, racial and ethnic minorities are allowed equal participation in society (economically and politically), and the extent to which general principles of liberal justice (however they may be interpreted) are enacted.
  3. Legal proceduralism—the extent to which political leaders and citizens respect the political independence of certain procedures. This dimension heavily emphasizes the liberal belief in the rule of law and the primacy of process. This can include law enforcement agencies such as the Department of Justice or the FBI, courts, and respect for the outcomes of elections even when partisan opponents are victorious.

It seems that there are reasons why one would want a democracy to retain all three features. Majoritarianism could be desirable to ensure stability, avoiding populist revolutions and uprising, and perhaps because one thinks it is just for government to be accountable to citizens. Liberalism, clearly, is desirable to ensure the society is just. Proceduralism is desirable to maintain the stability of the society given that people have deep political and philosophical disagreements.

Klein and Mounk’s debate, considering this explicit triadic distinction, can be (crudely) seen as Mounk initially emphasizing the tension between majoritarianism and liberalism in modern democracies. Klein pushes back saying that we are more liberal today than we’ve ever been, and perhaps the current majoritarian populist turn towards Trump should be put in context of other far more illiberal majoritarian populist impulses in the past. Mounk’s response seems to be that there’s also been a decline in respect for legal procedure in modern American politics, opening a danger for the instability of American democracy and a possible rise of authoritarianism.

First, it seems to me that both Mounk and Klein overemphasize respect for procedure in the past. As Robert Hasnas has argued, it has never been the case that anyone treats the law as independent simply because “the law is not a body of determinate rules that can be objectively and impersonally applied by judges” and therefore “what the law prescribes is necessarily determined by the normative predispositions of the one who is interpreting it.” There is always an ethical, and even a partisan political dimension, to how one applies procedure. In American history, this can be seen in ways that courts have very clearly interpreted law in motivated ways to justify a partisan, often illiberal, political view, such as Bowers v. Hardwick. There has always been a tendency for procedures to be applied in partisan ways, from the McCarthyite House Unamerican Committee, to the FBI’s persecution of civil rights leaders. Indeed, has Hasnas argues, the idea that procedures and laws can be entirely normatively and politically independent is a myth.

It is true, however, that Mounk does present reason to believe that populism makes disrespect for these procedures explicit. Perhaps one can say that while procedural independence is, in a pure sense, a myth, it is a constructive myth to maintain stability. People believing that elections are not independent, Trump’s disrespect for the independence of courts and justice, allows for a disintegration of those institutions into nothing but a Carl Schmitt-style, zero-sum war for power that can undermine stability of political institutions.

On the other hand, it seems worth emphasizing that there is often a tension between respect for procedure and the ethics of liberalism. Klein points out how there was large respect for legal procedure throughout American history that heavily undermined ethical liberalism, such as southerners who filibustered anti-lynching laws. Indeed, the justification for things such as the fugitive slave law was respect for the political independence of the legal right to property in slaves. All the examples of procedure being applied in politically biased and illiberal ways given moments ago support this point There is nothing in the notion that legal and electoral procedures are respected that guarantees those procedures in place will respect liberal principles of justice.

I remain agnostic as to whether we should be more pessimistic about the prospects for democracy in America today than at any other point in American history. However, at the very least, this debate reveals an impossible trinity, akin to the impossible trinity in monetary policy, between these three dimensions of democracy. If you hold majority opinion as primary, that includes populist urges to undermine the rule of law. Further, enough ink has been spilled on the tensions between majoritarianism and liberalism or effective policy. If you hold respect for procedure as primary, that includes the continuation procedures which are discriminatory and unjust, as well as procedures which restrict and undermine majority opinion. If you hold the justice of liberalism as primary, that will generate a tendency for morally virtuous liberals to want to undermine inequitable, unjust procedures and electoral outcomes and to want to restrict the ability of majorities to undermine minority rights.

The best a conventional democrat can do, it seems to me, is to pick two. A heavily majoritarian democracy where procedures are respected, which seems to be the dominant practice in American political history, is unlikely to be very ethically liberal. An ethically liberal and highly procedural government, something like a theoretically possible but practically unfeasible liberal dictator or perhaps a technocratic epistocracy (for which Jason Brennan argues), is a possible option but might be unstable if majorities see it as illegitimate or ethically unpalatable to procedural democrats. An ethically liberal but majoritarian democracy seems unworkable, given the dangers of populism to undermine minority rights and the rational ignorance and irrationality of voters. This option also seems to be what most western democracies are currently trending towards, which rightly worries Mounk since it is also likely to be extremely unstable. But if there’s a lesson to be learned from the injustice of American history and the rise of populism in the west it’s that choosing all three is not likely to be feasible over the long term.

Why the left loves democracy

The left loves to talk about democracy. Brazil’s former president Lula da Silva is in jail. Finally. Leftists inside and outside Brazil call this a crime against democracy because the polls were showing that in the upcoming October elections Lula would be elected president. The people wanted Lula president, and a judge, Sergio Moro, against the will of the majority, jailed Lula.

I will consent to this argument. Maybe Lula was going to be elected in October (although I have serious doubts about it). Would this be democratic? Maybe. In its most pure form, democracy is the rule of the majority. A good picture of this is three wolves and a sheep voting on what they are going to have for dinner. Leftists in power (or hoping to be in power) love this.

A pure Democracy, by which I mean a Society consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions. — James Madison, Federalist No. 10

Are voting ages still democratic?

Rather par for the course, our current gun debate, initiated after the school shooting in Parkland, has been dominated by children — only this time, literally.

I’m using “children” only in the sense that they are not legally adults, hovering just under the age of eighteen. They are not children in a sense of being necessarily mentally underdeveloped, or necessarily inexperienced, or even very young. They are, from a semantics standpoint, still teenagers, but they are not necessarily short-sighted or reckless or uneducated.

Our category “children” is somewhat fuzzy. And so are our judgments about their political participation. For instance, we consider ourselves, roughly, a democracy, but we do not let children vote. Is restricting children from voting still democratic?

With this new group of Marjory Stoneman Douglas high school students organizing for political change (rapidly accelerated to the upper echelons of media coverage and interviews), there has been widespread discussion about letting children vote. A lot of this is so much motivated reasoning: extending suffrage to the younger demographic would counter the current proliferation of older folks, who often vote on the opposite side of the aisle for different values. Young people tend to be more progressive; change the demographics, change the regime. Yet the conversation clearly need not be partisan, since there exist Republican- and Democrat-minded children, and suffrage doesn’t discriminate. (Moreover, conservative religious groups that favor large families, like Mormons, could simply start pumping out more kids to compete.)

A plethora of arguments exist that do propose pushing the voting age lower — 13, and quite a bit for 16 (ex. Jason Brennan) — and avoid partisanship. My gripe about these arguments is that, in acknowledging the logic or utility of a lowered voting age, they fail to validate a voting age at all. Which is not to say that there should not be a voting age in place (I am unconvinced in either direction); it’s just to say that we might want to start thinking of ourselves as rather undemocratic so long as we have one.

An interesting thing to observe when looking at suffrage for children is that Americans do not consider a voting age incompatible with democracy. If Americans do not think of America as a democracy, it is because our office of the President is not directly elected by majority vote (or they think of it as an oligarchy or something); it is not undemocratic just because children cannot vote. The fact that we deny under-eighteen year olds the vote does not even cross their minds when criticizing what many see as an unequal political playing field. For instance, in eminent political scientist Robert Dahl’s work How Democratic is the American Constitution? the loci of criticism are primarily on the electoral college and bicameral legislature. In popular parlance these are considered undemocratic, conflicting with the equal representation of voters.

Dahl notes that systems with unequal representation contrast to the principle of “one person, one vote.” Those with suffrage have one or more votes (as in nineteenth-century Prussia where voters were classified by their property taxes) while those without have less than one. Beginning his attack on the Senate, he states “As the American democratic credo continued episodically to exert its effects on political life, the most blatant forms of unequal representation were in due time rejected. Yet, one monumental though largely unnoticed form of unequal representation continues today and may well continue indefinitely. This results from the famous Connecticut Compromise that guarantees two senators from each state” (p. 48).

I quote Dahl because his book is zealously committed to majoritarian rule, rejecting Toqueville’s qualms about the tyranny of the majority. Indeed, Dahl says he believes “that the legitimacy of the Constitution ought to derive solely from its utility as an instrument of democratic government” (39). And yet, in the middle of criticizing undemocratic American federal law, the voting age and status of children are not once brought up. These factors appear to be invisible. In our ordinary life, when the voting age is brought up, it is nearly always in juxtaposition to other laws, e.g., “We let eighteen year olds vote and smoke, but they have to be 21 to buy a beer,” or, on the topic of gun control, “If you can serve in the military at 18, and you can vote at 18, then what is the problem, exactly, with buying a gun?”

What is the explanation for this? We include the march for democracy as one progressive aspect of modernity. We see ourselves as more democratic than our origin story, having extended suffrage to non-whites, women and people without property. We see America under the Constitution as a more developed rule-of-the-people than Athens under Cleisthenes. So, we admit to degrees of political democracy — have we really reached the end of the road? Isn’t it more accurate that we are but one law away from its full realization? And of course, even if we are more of a representative republic, this is still under the banner of democracy — we still think of ourselves as abiding by “one person, one vote” (Dahl, 179-183).

In response, it is said that children are not properly citizens. This allows us to consider ourselves democratic, even while restricting direct political power from a huge subset of the population while inflicting our laws on them.

This line of thought doesn’t cut it. The arguments for children as non- or only partial-citizens are riddled with imprecisely-targeted elitism. “Children can be brainwashed. Children do not understand their own best interests. Children are uninterested in politics. Children are not informed enough. Children are not rational. Children are not smart enough to make decisions that affect the entire planet.”

Although these all might apply, on the average, to some age group — one which is much younger than seventeen, I would think — they also apply to all sorts of individuals distributed throughout every age. A man gets into a car wreck and severely damages his frontal lobe. In most states there is no law prohibiting him from dropping a name in the ballot, even though his judgment is dramatically impaired, perhaps analogous to an infant. A nomad, who eschews modern industrial living for the happy life of travel and pleasure, is allowed to vote in his country of citizenship — even though his knowledge of political life may be no greater than someone from the 16th century. Similarly, adults can be brainwashed, adults can be stupid, adults can be totally clueless about which means will lead to the satisfaction of their preferred ends.

I venture that all Americans do not want uninformed, short-sighted, dumb, or brainwashable people voting, but they will not admit to it on their own. Children are a proxy group to try to limit the amount of these people that are allowed in on our political process. And is banning people based on any of these criteria compatible with democracy and equality?

Preventing “stupid” people from voting is subjective and elitist; preventing “brainwashable” people from voting is arbitrary; preventing “short-sighted” people from voting is subjective and elitist, and the same for “uninformed” people. We come to the category of persons with severe mental handicaps, be their brain underdeveloped from the normal process of youth, or injury, or various congenital neurodiversities. Regrettably, at first glance it seems reasonable to prevent people with severe mental defects from voting. Because, it is thought, they really can’t know their interests, and if they are to have a voting right, it should be placed in a benefactor who is familiar with their genuine interests. But now, this still feels like elitism, and it doesn’t even touch on the problem of how to gauge this mental defect — it seems all too easy for tests to impose a sort of subjective bias.

Indeed, there is evidence that this is what happens. Laws which assign voting rights to guardians are too crude to discriminate between mental disabilities which prevent voting and other miscellaneous mental problems, and make it overly burdensome to exercise voting rights even if one is competent. It is hard to see how disenfranchising populations can be done on objective grounds. If we extended suffrage from its initial minority group to all other human beings above the age of eighteen, the fact that we prolong extending it to children is only a function of elitism, and consequently it is undemocratic.

To clarify, I don’t think it is “ageist” to oppose extending the vote to children, in the way that it is sexist to restrict the vote for women. Just because the categories are blurry doesn’t mean there aren’t substantial differences, on average, between children and adults. But our reasoning is crude. We are not anti-children’s suffrage because of the category “children,” but because of the collective disjunction of characteristics we associate underneath this umbrella. It seems like Americans would just as easily disenfranchise even larger portions of the population, were we able to pass it off as democratic in the way that it has been normalized for children.

Further, it is not impossible to extend absolute suffrage. Children so young that they literally cannot vote — infants — could have their new voting rights bestowed upon their caretakers, since insofar as infants have interests, they almost certainly align with their daily providers. This results in parents having an additional vote per child which transfers to their children whenever they request them in court. (Again, I’m not endorsing this policy, just pointing out that it is possible.) The undemocratic and elitist nature of a voting age cannot be dismissed on the grounds that universal suffrage is “impossible.”

It is still perfectly fine to say “Well, I don’t want the boobgeoisie voting about what I can do anyway, so a fortiori I oppose children’s suffrage,” because this argument asserts some autocracy anyway (so long as we assume voting as an institutional background). The point is that the reason Americans oppose enfranchising children is because of elitism, and that the disenfranchising of children is undemocratic.

In How Democratic is the American Constitution? the closest Robert Dahl gets to discussing children is adding the Twenty-Six Amendment to the march for democratic progress, stating that lowering the voting age to eighteen made our electorate more inclusive (p. 28). I fail to see why lowering it even further would not also qualify as making us more inclusive.

In conclusion, our system is not democratic at all,
Because a person’s a person no matter how small.