Is it possible that the courts - one of our most important "auxiliary precautions" - are undermining republican liberty?
William Riker and Barry Weingast argue in an article in the Virginia Law Review that social choice theory’s “chaos theorem” regarding majority decision-making augurs for heightened judicial review of legislative enactments. I’m skeptical. Not because majoritarian instability is a good thing. Rather, the categories from social choice theory of the “stability” or “instability” of majoritarian outcomes do not map consistently either onto legislation being “constitutional” or legislation being “unconstitutional.” So the concepts don’t help with thinking about judicial review.
“Social choice” relates to decision making within groups of people. Hence “social” because there’s more than one person making the decision. The “chaos” results of social choice theory relates to the fundamental insight that majoritarian decision making need not be rational. As I’ve discussed before (here and here, among other places) by arguing that majoritarian outcomes are “irrational” social choice theorists do not mean substantively foolish majoritarian outcomes. Rather, they mean majoritarian outcomes cannot be guaranteed to align with rational choice theory’s rationality postulates.
These are well known, but to avoid the need to click on the links above, “rationality” in social choice theory (which is a subset of rational choice theory) means that an actor [a] can rank all the choices the actor can make – A is preferred to B, B is preferred to A, or A is indifferent to B – and [b] the actor’s choices are transitive. So if one prefers A to B, and B to C, then one also prefers A to C.
The well-known problem with majoritarian decision making, however, is that it can be intransitive. The irony is this: a group of entirely rational individuals making decisions together by majority rule can make socially irrational choices. In speaking of “irrational” social choices of majority rule it’s important to keep in mind the narrow definition of what an irrational outcome is – basically that outcomes chosen by the group are intransitive.
Majoritarian “voting cycles” result from majoritarian intransitivity. Again, to avoid the need to click on a link, consider the simplest example. We have a three-person legislature voting over three policies. The legislators’ policy preferences are configured this way: Legislator 1 prefers policy A to policy B to policy C. Legislator 2 prefers policy B to policy C to Policy A. And legislator 3 prefers C to A to B.
In sincere, pairwise voting between the policies, it is straightforward to see that, depending on which policies get voted on first, policy A can be a majority-supported outcome. And policy B can be the majority-supported outcome. And policy C could be the majority-supported outcome. Any of the policies could be supported as majority outcome. Basically, then, whether policy A, B or C is actually adopted by the legislature is a result of factors other than majority preferences. What matters is who, or what, determines the sequence in which the policies are voted on.
It is this that worries Riker and Weingast. They point out that the person who determines the sequence of votes – for example, the majority leader of the legislative chamber – chooses the outcome. So, really, only that one person’s policy preferences determine the policy outcome, not majority preferences.
So, according to Riker and Weingast, actual legislative outcomes derive from non-majoritarian arbitrariness. This arbitrariness, for them, justifies heightened judicial review of legislation.
That said, one could spin it the other direction entirely: Majoritarian indeterminacy actually presents us with an embarrassment of riches in that whatever normative suasion majority rule provides can be satisfied consistently with any of the outcomes. It’s not as though a minority were imposing its will on the majority in any of the outcomes, after all.
Indeed, it is something of a misnomer to refer to “the” majority in this context. There are many majorities. Why would it be problematic that more than one policy crosses the majoritarian threshold?
Secondly, however, “stable” or “determinate” majority outcomes aren’t necessarily good things either. Consider, say, the Alabama legislature in the 1930s. Given the configuration of race-based preferences in the legislature, there was no question that racially-oppressive legislation was also “stable” and “determinate.” There was no possibility of cycling no matter who the agenda-setter was. Yet the substantive outcome would be unconstitutional.
One might be tempted to turn the tables and argue that majoritarian indeterminacy is a good thing in that bad legislation could be overturned by differently-configured majorities in the legislature. And that’s certainly true. But it is no more true than that good legislation could equally be overturned by differently-configured majorities in the legislature in favor of a bad alternative.
The standard of review with which judges review legislation has been a hot-button issue for over a century. It’s not a question of whether unconstitutional legislation should be permitted or not, it’s a question of who or what gets the benefit of the doubt when judging whether a piece of legislation is constitutional or not. Important results from social choice theory regarding majoritarian indeterminacy doesn’t really help with those determinations.