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They depend, that is, on assertions about the ignorance and incompetence of the population, and its vulnerability to deception and manipulation. There has been a substantial increase in educational attainment. In , one fourth of the United States population had received a high school diploma.

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By , that number had risen to 88 per cent. In the same period, the percentage of adults with college or university degrees rose from less than five per cent to 33 per cent. This can be observed in the multiplication of broadcast sources, including hour news channels. And, of course, the Internet has made it spectacularly easier and cheaper to access, and to disseminate news and opinion of every kind.

Still, there is reason to doubt that these developments have translated into more capable voters. We are all familiar with surveys demonstrating that a substantial part of the population cannot answer even basic questions about government and society. See also 30— Richard Kay 6 September 18, whether their welfare has improved or declined. Ilya Somin has suggested a structural explanation for political ignorance. First, the information revolution has not just failed to improve the judgement of voters, it may also have increased the confidence with which they hold their unfounded positions.

Second, both legal and non-legal rules, practices and institutions associated with political decisions have changed in ways that cause those decisions more accurately to mirror the uninformed preferences of the population. The Competence of the Electorate The drastic increase in the volume of available information may have been matched by an at least equal increase in the share of that information taken up by erroneous propositions.

In a much-quoted 34 ibid 91— See also — Such resources are simply unavailable in sufficient quantity to the average citizen. This manifests itself in the way people pattern their consumption of information, and results in the abundance of information reinforcing rather than testing their political preferences. In addition to favouring information conforming to their existing preferences, people instinctively resist contrary information when they do encounter it. In the modern information environment, that is, opinions harden. The authors controlled for the fact that longer lasting articles were, for that reason alone, more likely to be read: at Richard Kay 8 September 18, hours of reports from all-news television channels, or of clicking through massive volumes of online material, fosters the illusion that they understand political issues.

The original beliefs were clung to with even greater force. Democracy Perfected The second reason to think that democratic decision-making may be becoming riskier concerns the ways in which the rules of political participation have changed. A direct vote of the actual population on every mooted issue has, for obvious reasons, rarely been attempted. Ancient Athenian democracy did briefly rely on the deliberation and vote of every citizen, but the voting citizens 49 See Nichols, Death of Expertise n 40 — Richard Kay 9 September 18, were a fairly small percentage of the governed population.

In modern states, moreover, a variety of specialised institutions will usually be established to carry out public functions skillfully and efficiently. Generally, all of these institutions will be answerable to the governed population, but only periodically and indirectly.

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In such societies, the democratic will is transformed as it passes through these intermediate bodies and is directed into established channels. What emerges will differ significantly from application of the initial raw popular preference. Of course, some developments appear to have taken the opposite direction. Most obvious has been the emergence of the administrative state. The day-to-day business of government is largely carried out by agencies removed from the direct influence of the people. This complicated bureaucracy effectively legislates and enforces rules that have only the scantest connection to policies enacted by elected legislatures.

Judicial oversight of these agencies is necessarily sporadic. Courts, moreover, are often at a loss to evaluate administrative decisions in highly specialised fields.

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While it is undeniable that the administrative state has inserted a distinctly undemocratic element into modern government, it is worth noting that Bickel still found judicial review to pose a qualitatively greater counter- majoritarian difficulty. The transfer of governmental power from national to supra-national organisations may present another example of apparent reduction of democratic authority, at least if the relevant demos continues to be defined on the national level. The expansion of the jurisdiction of the European Union is the most obvious example.

The suspicions of many of the American founders regarding democratic government have already been noted. The set of institutions created in the original Constitution of —89 could barely be said to amount to a democracy at all. That danger was reduced in the proposed government of the United States. It would be established over a large population and extended over a vast territory, making the coalescence of a majority faction difficult. The powers of the direct representatives of the people, that is, were to be hedged on every side by institutions staffed with people who had been carefully insulated from the direct choices of ordinary voters.

The ultimate supervisory power of national public opinion, in this case, is dramatically demonstrated by the referendum in which voters in the United Kingdom expressed their preference for withdrawing from the European Union.


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There has been, that is, a persistent movement in the direction of establishing the actual choices of the governed population as the principal ingredient in public decision-making. By the s, pretty much all these financial qualifications had been abandoned and, with some narrow exceptions, all adult white males could vote.

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Thereafter, the broadening of the right to vote was affected nationally by amendments to the United States Constitution. In , in the wake of the Civil War, states were barred by the Fifteenth Amendment from limiting the right to vote on account of race. Under the Nineteenth Amendment, ratified in , neither the states nor the United States could withhold the vote because of sex. In , the Twenty-Third Amendment expanded the right to choose presidential electors to residents of the District of Columbia. The Twenty- Fourth Amendment, ratified in , prohibited conditioning the right to vote for federal office on the payment of a tax.

Finally, in , the Twenty-Sixth Amendment expanded the constitutional right to vote in state or national elections to all persons who had reached the age of The cumulative result was that, as matter of law, the potential electorate was very nearly co-extensive with the adult population of the United States.

The selection of electors for President is still constitutionally committed to state legislatures. But as matter of practice, by , every state but one provided for popular elections of presidential electors who were pledged to vote for certain presidential candidates. The Voting Rights Act of , Pub L No , 79 Stat , created legal rights and procedures that went a long way toward making that right effective. That law is still on the books, but its reach has been very significantly restricted by a holding of the Supreme Court, striking down one important requirement of the Act as an unconstitutional infringement of state sovereignty: Shelby County v Holder, US Richard Kay 12 September 18, preferences of the people, due to holdings of the United States Supreme Court requiring legislative districts to be equal in population.

There is no machinery for submitting national lawmaking to a popular vote. All states but one require a referendum to approve amendments to the state constitution. In 18 states, a sufficient number of signatures on a petition obliges the state to put a proposed constitutional amendment on the ballot. In 23 states, legislatures are authorised to put proposed statutes on the ballot and, in 21 states, legislation may be initiated by popular petition.

Parties are not mentioned in the Constitution nor is there much in the debates surrounding its adoption that suggest it was the subject of much concern. But some form of political organisation is essential if democratic choices are to be translated into a set of representatives who will pursue any preferred program.

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No presidential candidate of either major political party has been selected as a result of unbound delegate votes at a national convention since Every ten years with a new national census, the courts decide a rash of challenges to legislative redistricting. The resulting law is both messy and dense. New Haven, Yale University Press, As in the United States, the first decades of the nineteenth century in the United Kingdom saw a substantial, although far from universal, extension of the right to vote for members of Parliament.

The Great Reform Act of strengthened the link between the population and Parliament: constituencies were redrawn to make their representation more consonant with their relative populations, and their economic importance; property qualifications for voting were rationalised, although not eliminated. The Act resulted in an increase of almost fifty per cent in the total number of voters. The political predominance of the Commons eventually took legal form in the Parliament Acts of and This means that the public is more directly empowered to choose the policies to be pursued by the government, and to select the individuals who will hold the public offices that formulate and execute those policies.

Evans also cautions, however, that the effect of the Act in democratising parliamentary representation was decidedly mixed: at One of the earliest documented uses was in a letter from the English scholar and cleric, Alcuin, to Charlemagne. Those facts underline the value of a limited and mediated democracy; one in which popular opinion is an essential but not an exclusive source of decision. In such a system, popular beliefs need to be considered with respect, but such consideration must also take into account realities that the population may have missed or misunderstood.

Democracy and Mixed Government If this sobering account of modern democracy is in any measure convincing, our initial concern over the relative roles of courts and legislatures in making public decisions may appear in a new light. The counter-majoritarian difficulty took the presumptive rightness of democratic decision-making more or less for granted. If we believed, as a matter of principle, that majorities ought to govern and that the people who constituted those majorities could safely be expected to use their political power to promote public welfare, then any restraint on their ultimate authority would need to be justified.

See further, discussion in text attached to n below. Richard Kay 15 September 18, establish rules for the operation of the state. The existence and enforcement of such rules allow individuals and private groups to know when their conduct is at risk from or immune to state regulation. Even if we thought, notwithstanding the problems with modern democracy, that public welfare was otherwise best protected by a government responsive to popular opinion, we might still believe that predictability and stability—the peculiar constitutionalist values—could only be secured by a law-bound state.