Majoritarian bluster, the Supreme Court, and deciding what you would be willing to lose

 As we approach the reversal of Roe v. Wade and continue other tediously repetitive discussions of policy stalemates tied up in claims of majoritarian mandates, I think it is important to step back and consider some basic elements of democratic theory and the structure of policy-making.  A few of these observations are scattered throughout my commentary, but I'd like to draw them out, and put them into more coherent form.  Or as coherent as any of my ramblings ever are.  I regularly write that nobody truly believes in majoritarianism, that nobody says, "OK, you have the majority on Issue X, so I demand to lose as a matter of democratic principle," and so forth.  There is actually a lot of complexity here, though.  Some of these issues are basic concepts that one might remember from the old classics, and some of what follows will just be my own twist on some basic democratic theory that just gets brushed to the side as true but too inconvenient for most people to consider.  But, since nobody considers this blog either, it doesn't matter anyway.

So here's a trick.  "Look at this poll!  It shows that a big majority of the population agrees with me, which proves that it would be morally and democratically wrong for me to lose!  In fact, the Supreme Court itself must side with me!"

Note that I did not state the general issue, nor the specific policy.  That has two implications.  First, almost any policy issue can be described at least in terms of the left-right spectrum, if not in multidimensional terms, depending on its complexity.  For the sake of mathematical tractability, let's assume that any one issue is unidimensional.  If that is the case, then any specific policy debate can be described by a cut-point.  When we ask a survey question on a specific policy within a given issue, we are adopting a cut-point.  Do you support or oppose Policy A?  Mathematically, that means asking, are you to the left or the right of cut-point A?  Within any given issue, I can place a cut-point in lots of places.  If I place the cut-point on the far right, only extreme right-wing nutjobs (wingnuts) will take the conservative position, and I create the illusion of unity for the left-wing position, not because the public is unified, but because I structured the cut-point to separate the wingnuts from everyone else.  For any issue-- the same issue included-- I can also put the cut-point on the far left, such that you have the extreme left-wing nutjobs (moonbats) on one side, and everyone else on the other.  I create the illusion of unity in favor of the conservative position on the same issue.

And I can play the same game, issue by issue.

So the first big point here is to be aware that this is happening, at all times, on all issues, in all policy debates, as a tactic used by all sides.  Watch how this works on abortion.

Should a woman be able to walk into a doctor's office, two weeks before the due date, and ask for an abortion, not for any medical reason, but because she just changed her mind?  If you are pro-choice, your response is going to be to say something about the rarity of such a circumstance and challenge the question, and the main reason you want to challenge the question is that it is a really uncomfortable question for the pro-choice side, but I'm not engaged in a debate, and I don't care about anyone's comfort.  I'm a political scientist blogging for my own clarity of thought.  The point is that the cut-point here puts Rick Scott in the majority and Ocasio-Cortez in the minority.

Now let's flip that around.  A 16-year old girl is raped by her father.  Should she be forced by the government, government's gun to her head, to carry her child/grandchild with all that ick, to term?

Now Rick Scott is in the minority, and Ocasio-Cortez is in the majority because we put the cut-point on the far right.

How does that work?  Because abortion isn't one policy, reducible to this one thing called "Roe v. Wade."  And we can do this with any issue.  I'll turn it into a line, move the cut-point by changing the substance of the question, and in so doing, I'll change which extreme end shows up on the majority.  This is basic stuff.

The democratic theory implication is that it is never correct to say that either the right or the left has the majority on a generalized topic.  You need to be specific about the policy (cut-point).  Rather, cut-points are used strategically by each side to construct the illusion of a majority because the illusion of a majority is strategically useful.

To say, "we are in the majority" is to say, "we should win."

Right?

Not so fast.  There are boundless policy issues, and for our purposes momentarily, mathematical purposes, all that matters is that there are at least two.  Once you get above one policy issue-- once you get more than one dimension-- we enter a very different world.  If everything could reduce to one dimension-- let's just call it the liberal-conservative dimension-- and each person's preferences were fully described by a single location along that dimension, then democratic theory would be simple, in mathematical terms, because there is one magic location.  The location of the median voter.  That location has lots of nice, mathematical properties, and we could make a variety of arguments that the location of the median voter "should" win, in normative terms.

Yet we have more than one dimension.  One of the key lessons from Philip Converse (1964) is that voters are ideologically unconstrained, which means that they mix-and-match in order to construct the bundles of policy positions they hold.  A little liberalism, a little conservatism, and nothing like a well-composed dish.  Dude, you're putting vinaigrette dressing on pollo asado?  What the fuck is wrong with you?  (I seriously spent about two minutes trying to come up with something that stupid and gross.)

Anyway, after that appetizing thought, the basic problem is that when the electorate is described in multidimensional terms, there is nothing like the location of the median voter.  Instead, we have "the chaos theorem," which comes to us from Richard McKelvey.  I mention it occasionally.  The basic idea is as follows.  Suppose we're on a line.  If you hold a sequence of votes using the "I got winner" rule, eventually, you'll wind up at the location of the median voter, or at least you'll asymptotically approach it.  Or, some asshole will play some other Zeno game, and fuck you if you were thinking that.

In the multidimensional world, you don't converge anywhere.  Instead, you can construct a sequence of votes that leads from anywhere to anywhere, if you are sufficiently creative in your use of the "I got winner" rule.  Why?  Because there is no will of the people.  I say it over, and over again, but it is important.

But today's post is not about McKelvey's math.

It's about the underlying normative belief.

Let's go back to those abortion questions.  I can compose abortion questions that put either Rick Scott or Alexandria Ocasio-Cortez in the majority, despite the fact that both are people with whom, generally speaking, I would like nothing to do.  So if you ask me to pick Team Scott or Team Ocasio-Cortez, my response would be, how about Team Fuck Your Question?  Regardless, both are extremists who can ask questions that put themselves in the majority.  Does either represent a "true" majority?  Dude, you missed the point.

So we extrapolate to the next step.  Y'all love to find polls which put you in the majority.  C'mon.  I know you do.  Asch line experiment.  You'll say fucking anything if it puts you in the majority.  Add to that the manner in which you consume news and polls and you are likely to see polls which show you how much everyone agrees with you, and yes, really, that line is so much longer!  Obviously!  Can't everyone see how much bigger my... line is?!

Yet few people construct their news consumption patterns as such closed environments that they never see polls that put them in the minority.  OK, yes, Trump, but he is uniquely stupid and shitty.

At some point in your life, you saw a poll, and it showed you that you were in the minority.  By a significant margin.  Scratch that.  Points.  Plural.  More than one.  It happened a bunch.  And since you don't keep a running tally, you have this thing in your head called "confirmation bias."  You get a warm and fuzzy feeling when you see "yay, I'm in the majority!" polls, and cognitive dissonance prods you to forget the ones that show you that you are in the minority, because that feels icky to you.

No, that line looks shorter, but everyone is saying it's longer!  Brain hurt!  Brain hurt!

(Yes, Asch has been replicated.  Amid the replication crisis, these things must be checked.)

Are you the brain specialist?  MY BRAIN HURTS!

Anyway, you have stopped the brain-hurt by suppressing the memories of all the times you have seen evidence that you are in the minority.  One should make an effort to remember all of the pieces of evidence that one is in the minority.

And then ask the following question.

For all of the times I have said, "you must cede the argument because I am in the majority and you are in the minority," would I cede the argument were positions reversed?

I have never seen anyone concede the righteousness of their policy positions on the basis of a poll.  To be clear, that is not the same thing as conceding the righteousness of a vote tally on the basis of the count, or the proper way to conduct votes, etc.  I'm just talking about the question of whether the minority has a moral obligation to concede.  And here's how you know that nobody believes it.

The same people who appeal to polls when they have polls putting them in the majority disregard the concept a majority opinion when it disfavors them.

So on what basis do we disregard public opinion?  Plenty of policies can be evaluated on technocratic grounds, but let's take a look at our national SCOTUS.  What?!

Telling the Supreme Court that it must rule according to public opinion polls.  Yeah.  Sure.  People really believe this.  So Brown v. Board was a travesty, by that theory, gay marriage shouldn't have been legalized until public opinion flipped... do I need to keep going on this bullshit?  Here's the thing.  We have two distinct categories, often conflated.  Civil rights, and civil liberties.  Confusing terminology, and if it has been a while since you took Civics or Intro American Politics, here's the distinction.  Civil rights are the requirements for equal treatment under the law, and civil liberties are the freedoms upon which the government cannot infringe.  So for example, freedom from racial discrimination in hiring is a civil right, and freedom of speech is a civil liberty.

The thing is, both are anti-majoritarian, depending on the context.  And rather frequently.  Civil rights exist to protect, if not numerical minorities, then those who frequently face discrimination and disadvantages.  Women are a hair over 50% of the population, yet they face hiring and pay discrimination in many, although not all environments.  Civil rights law covers discrimination on the basis of sex.  The more heated history, so to speak, has been over race.  The 1964 Civil Rights Act was very much anti-majoritarian, at least for the regions with the worst problems, which is not to say that anywhere was Shangri-La for African-Americans, but regional variation existed, and the South was worse.  It was also were opposition was stronger.

Leave segregation up to "public opinion," and you don't get desegregation, even if African-Americans had been allowed full voting rights.  (The VRA was '65.)

You get Orval Faubus and George Wallace and shitbags like that.  That's majority opinion.

Majority opinion also gets you censorship and plenty of other bad shit.

So here's what we do.  We cordon off these categories: civil rights and civil liberties, and say that these things, majority opinion may not touch.

Hey, majorities! Go touch yourselves, but hands off my SCOTUS!

Take a moment to appreciate how cool this is.  How sophisticated this is.*  The process by which America, this fucking awesome country, has moved towards a method of reconciling the necessity of demos and -kratia with a check on that -krating to prevent the majority from -krating all over the rights and liberties of minorities because they can.  Tyranny of the majority is tyranny.  We solve this through the establishment of civil rights and civil liberties, and no, I don't give a fuck that James Madison didn't solve that problem.  He did enough just to figure out some basics in a world still run by kings and queens.  Newton didn't figure out relativity, but that didn't mean he wasn't the smartest human in fucking history.  Yeah, the Articles of Confederation were fucked.  The Constitution was better, but still had a lot of problems.  I care what happened next.  Civil rights and civil liberties and the process of history moving forward in the development of rights and the protection of rights.

Which are anti-majoritarian.

And when you ask the Supreme Court of the United States to rule that the Constitution protects a liberty, on the basis of the Constitution, you are asking them to rule that there is a thing, cordoned off as safe from public opinion.  Safe, such that no matter what public opinion says, it cannot be touched.

So why would you then tell SCOTUS that in assessing the status of this maybe right/liberty, they must consult public opinion polls?

Agree with SCOTUS.  I often do.  Disagree with them.  I often do.  But tell them to rule on the basis of public opinion polls?

Then why bother?  The whole point of civil rights and civil liberties is that they are the things separate from public opinion.  They are my protection from you.

Because in the hypothetical case that you exist-- this isn't solipsism, but rather, recognition that nobody reads this damned blog-- then whoever you are, why am I supposed to trust you to protect my rights?  You don't get to decide my rights.  By definition.  My rights, by definition, are the things you don't get to decide.  They're fucking mine.  My right to freedom of speech, for example, and most importantly.  You know who I trust to defend that?  Nobody but me.  Not even the ACLU anymore, since they went full-woke.  For now, maybe the Foundation for Individual Rights in Education.  The "majority," amorphous and fickle as it is?

No.

That's the whole point of "rights."

Yet to cordon off a sector of policy-making as untouchable by public opinion opens up the following important question:  what should be the domain of public opinion?  What are the issues on which you would be willing to lose?  What are the issues on which you would say, yes, I should lose, should the public side against me?

I posed this question above, so it is incumbent on me to answer it.  Not for anyone else, since nobody is reading this.  I do this for my own clarity of thought.  So what are the issues on which I would say, yes, I'd lose?

Of course, despite the fact that nobody reads this blog, I tend not to state policy positions on major issues, like taxes, abortion, etc.  There are issues on which I have stated positions, for various reasons, so I'll consider them.

Speech?  Nope.  That is a civil liberty, and outside the bounds of issues on which a loss is acceptable.  As an example.

A few posts back, I made a snarky comment about immigration.  I have either stated or implied on many occasions that I lean towards a relatively open immigration policy.  There are issues on which I break from the academic norm, but this is not one of them.  My reading of the economics literature is that immigration is a net-positive for the US, and combine that with my hipster-wannabe-cosmopolitan bullshit and general desire to let people in when they are fleeing some bad shit, and yeah.  Let's have a more open immigration policy.

Yet this is not covered by "civil rights," nor, "civil liberties."  OK, when Trump pulled his muslim-ban bullshit, that crossed constitutional lines, but if we think of a line from open-borders to closed-borders, the Constitution does not require a specific point anywhere along that line.

Oh, and the kids...

Sorry.  Off track.

Point being, there are issues on which I would look like I am somewhere on the right.  This is an issue on which I look pretty far left.  But does the Constitution require a policy anywhere near my preferred policy?  No.  Moreover, I know that my preferred policy is a more open policy than most of the country.

Moreover, if the Constitution provides no rule for what policy should be-- true on most policies!-- then public opinion becomes a reasonable guide.  We're still stuck in McKelvey territory, so we cannot just go issue by issue, and pick the median position on every issue (that'd take a while to explain), but here is the basic point.  This is a policy issue which is not about civil rights nor civil liberties, as set forth in the Constitution or federal law.

And I'm in the minority.

And I know it.

That doesn't mean I cede the rightness of my position, but it does mean acknowledging the validity of losing.

And that, ultimately, is the most important question in modern American politics.  Will you accept the validity of losing?  Our electoral system is falling apart because one party-- the Republican Party-- has decided that they will no longer accept as valid any election in which they lose.  I don't know how to recover from that, or if it can be done, yet the mentality behind that is the mentality in which you do not accept the validity of a loss, more generally.

I cannot control anything except my own cognitive process.  I can fix nothing, heal nothing, and certainly lead nothing.  I don't even have an audience, which is all the better given the incoherent nonsense on this blog.  But from a cognitive perspective, the underlying problem, base level, beneath everything, is the question of a loss.  Some losses are legitimate.  Some are not.  Since losses are not fun, you have cognitive incentives to tell yourself that any given loss is not legitimate, and to accept any argument that yields such a result, yet the challenge is to have a system that tells you, coherently, consistently, what kind of outcome can be supported.  Within the policy realm, we use the concepts of civil rights and civil liberties to cordon off the topics on which the public should have no say whatsoever.  On other topics, procedurally, the public gets a say, which does not mean that one must cede a technocratic argument, but one must at least think through the issues on which one is willing to lose.

Because the alternative is something uglier.

With that, here's a Little Feat tune, but in my opinion, it sounds best when Paul Barrere and Fred Tackett play it acoustic together.  "Hate To Lose Your Lovin'."

*The concepts, not me.  I'm obviously juvenile.