on popular representation versus republican democracy in the context of constitutional law
Reading Colin Turpin’s materials on British constitutional law: details of UK electoral business made me think of something about the electoral college (EC) here in the US - the usual explanations about its origins (3/5 compromise, rural v urban, check on de Tocqueville factions in the days of more independent electors, and so on) miss something: that, as Richard Rose said of the UK FPTP system, the EC is meant to manufacture absolute majority governments (Rose in Turpin p. 534), rather than governments that reflect the popular vote only, but may consequently have weak mandates (i.e., parties that can govern on the basis of, say, 40% of a popular vote, only when the remaining vote is too divided to outrun them). I suppose one could even imagine a benevolent version of gerrymandering (not the current version) meant to promote this too. Electoral college victories, of course (with the EC acting as a sort of third house of the legislature that appears and disappears every four years), tend to be more decisive, and are thought to serve political stability and public confidence (...) in that way. (Especially perhaps, as Turpin notes of UK, where it's two-party stability that's historically desirable.)
More important than this, though, is the return of the idea that fundamental rights built into US constitutional law are there, as someone’s phrase has it, to protect “political losers,” i.e., to protect those who lose political contests – whether in courts, elections, referenda, regulatory decisions, or legislatures – from any overreach or tyranny of the winners (back to de Tocqueville). There are two ways of thinking about this kind of provision: (i) that since there will always be political losers, such provision mitigates that unhappy fact, or (ii) that shielding political losers is actually preferable to not having political losers – or, to put it another way, preferable to having a system in which no political faction really concedes defeat, or entirely cedes control to the rule of another faction. The latter is what happens, I think, when proportional representation of party interests (or the popular vote) is allowed to stand in for government in its bare form: say, 35% vote Republican, 40% vote Democrat, and 25% vote something else: the Democrats have a weak mandate in the form of a relative majority, but not the absolute majority that gives a dependable power to govern. The electoral college (and the UK’s own system) transforms that popular, relative majority into an absolute majority of representation, soothing those who fear the paralysis of faction-ruled politics. Proportional representation of parties alone, in other words, is not a strong democratic goal. This is interesting to compare with, say, affirmative action and similar ideas about racial and ethnic representation (and the following is true for gender representation, too). Is it just to require workforces, governments, student bodies, etc., which at least approximately reflect a population’s racial proportions, as many advocate: we cannot, at any rate, answer this question by saying no, while noting that fundamental rights can be further cultivated to protect racial “losers.” Our political culture can (must?) acknowledge the reality of political losers, but it cannot countenance such a racial category – nor can any racial category be allowed to dependably coincide with the politically defeated population. That is the nature of racial justice: to keep politics and race independent, because the former will perhaps always have losers, but the latter never can.
Turpin (537-38) turns to support and critique of proportional representation (PR), and the coalition governments it can me made to yield, as an alternative to FPTP/plurality systems, noting fears of some that PR governments can be less accountable, harder to remove from power, and less compelled to grapple with different ideas. This seems a part of my argument above, that what seems like giving political parties their due in a PR system can be more akin to giving the parties participation trophies for being part of the contest at all, with a corresponding loss of political efficacy. And yet, is it also possible that there is some version of coalition rule akin to stakeholder capitalism, where competition often gives way to cooperation. This is hardest to imagine in the US, where even an FPTP system too often results in gridlock; yet such paralysis is partly due to those fundamental checks on majority power discussed above (a presidential veto of a bill whose supporters, while in absolute majority, lack the 2/3 proportion, etc.). Might such tools be used less often if the partisan contests were not so fierce to begin with. To judge from the fortunes of stakeholder capitalism, this idea surely has better chances in Europe, where national identities persist in maintaining a different tinge than in the US, with its vastly greater territory and markedly different history and economy.