Harvard Legal Theory Forum Working Paper Series
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Paper No. 1
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DELIBERATIVE DEMOCRACY, SOCIAL PSYCHOLOGY, AND
THE AUTHORITY OF LAWS
Jonathan Gingerich
March 3, 2009
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Gingerich 1
D
ELIBERATIVE
D
EMOCRACY
, S
OCIAL
P
SYCHOLOGY
,
AND THE
A
UTHORITY OF
L
AWS
DRAFT—NOT FOR CITATION
Jonathan Gingerich
March 3, 2009
N.B. This paper is rather long—if you don’t wish to read all of it but wish to read part, I would recommend reading the Introduction (pp. 1-8), Part III-C (pp. 46-58), Part IV (pp. 58-71), and the Conclusion (pp. 71-73). -JG
I.
I NTRODUCTION
A. The Problem of Deliberation and Authority
Many authors believe that democratic deliberation makes laws legitimate and authoritative, even if they do not advance this argument explicitly.
1
Some authors make this argument explicitly. Particularly, many sophisticated political theorists argue that if a law is the result of democratic deliberation, then there is a prima facie reason to treat it as having legitimate authority. This is because, deliberative democrats argue, democratic procedures accurately reflect the will of the people.
Perhaps this makes sense on a homo economicus model of rationality that assumes that people reveal their preferences by their actions, that the motivational structures in which preferences are revealed do not distort them, and that better access to information always produces better results for a given individual. Modern economics has been dominated by “a
© 2008-2009, Jonathan Gingerich. I am grateful for the comments and questions of William
W. Fisher III, Yochai Benkler, Frank Michelman, Patrick Connolly, Stacylyn Dewey, and the students in the Spring 2008 Motivation Seminar at Harvard Law School. I am particularly grateful to Emily Wack for suggesting this topic. All errors, of course, are mine.
1
See, e.g.
, B RUCE A CKERMAN & J AMES S.
F ISHKIN , D ELIBERATION D AY # (2004) (describing a scheme for state-sponsored small group deliberations before elections).
Gingerich 2 conception of welfare based on the satisfaction of existing preferences, as measured by willingness to pay; in politics and law, something called ‘paternalism’ is disfavored in both the public and private realms.” 2
However, social scientific literature that shows the diversity of noneconomically-rational motivational forces that structure human action casts this account into severe doubt. If “design levers” like communication, empathy, solidarity, and motivation crowding affect people’s preferences, and if different procedural frameworks for democratic deliberation differentially affect these design levers, it is not apparent that democratic deliberation can neutrally (that is, without ideological bias) reflect the beliefs, arguments, or preferences of members of a democratic society. This means that laws cannot be authoritative simply because they are the outcome of democratic deliberation; instead, any justification of laws must stem from reasons other than their approval by democratic institutions (though democratic institutions may still, for instrumental reasons, be the most desirable means of producing and enforcing laws).
If different deliberative procedures affect people’s motivations in different ways and generate different outcomes just because of their structures’, then choices about how to deliberate are also choices about the outcomes of deliberation. If this is true, it discredits arguments that substantive laws or procedural frameworks are legitimate simply because people have agreed on them.
3
Existing procedural frameworks reflect particular political commitments, and must be justified with reference to these commitments, not with reference to the claim that they are the outcomes of fair deliberation. More particularly, claims that certain structures are
2
Cass Sunstein, Democracy and Shifting Preferences , in T HE I DEA OF D EMOCRACY 196, 198
(David Copp, Jean Hampton, & John E. Roemer, eds., 1993).
3
I am not sure that no deliberative framework could be truly procedurally neutral. There might be some way of framing deliberation that I have not thought of that avoids the problems of ideological infection that I describe, but I am very skeptical of the possibility.
Gingerich 3 legitimate because they simply “neutrally” aggregate citizens’ preferences should be disregarded, as no aggregation of preferences is neutral. Whether it involves voting, discussion, bargaining, or a mix of these, any democratic structure will shape as well as aggregate preferences or beliefs.
There are no systems of deliberation in which the aggregation of data will not feed back into the system.
4
The story I am telling here is rather procrustean in some ways. Of course, many deliberative democracy theorists, and particularly Jürgen Habermas with his account of
“communicative rationality,” recognize that power, resources, and structures of communication affect the outcomes and beliefs of people within communicative systems and treat these factors as the proper focus of the analysis of the legitimacy of communication.
5
Habermas’s “ideal speech situation” is an attempt to ensure equal access to participatory democracy without distortion by wealth or power.
6 The ideal speech situation attempts to do this by defining the characteristics of a deliberative practice that would make its outcomes legitimate.
7
Thus,
Habermas recognizes that deliberation is not just about revealed preferences—people work things out through communication and change their minds after deliberating with other people.
However, the goal of communicative rationality is still undistorted communication: “Whoever enters into discussion with the serious intention of becoming convinced of something through dialogue with others has to presume performatively that the participants allow their ‘yes’ or ‘no’
4
See M ANUEL D E L ANDA , A N EW P HILOSOPHY OF S OCIETY : A SSEMBLAGE T HEORY AND S OCIAL
C
OMPLEXITY
# (2006) [PARENTHETICAL].
5
See J ÜRGEN H
ABERMAS
, B
ETWEEN
F
ACTS AND
N
ORMS
# (William Rehg trans., 1996); Jürgen
Habermas, Constitutional Democracy: A Paradoxical Union of Contradictory Principles?
(William Rehg trans.), 29 P OL .
T HEORY 766, # (2001); J ÜRGEN H ABERMAS , T HEORY OF
C
OMMUNICATIVE
A
CTION
# (Thomas McCarthy trans., 1984).
6
See J ÜRGEN H
ABERMAS
, O
N THE
P
RAGMATICS OF
C
OMMUNICATION
367-68 (Maeve Cook ed.,
1998).
7 See id.
at 365-68; H
ABERMAS
, B
ETWEEN
F
ACTS AND
N
ORMS
, supra
Gingerich 4 to be determined solely by the force of the better argument.” 8
Unlike psychoanalytic theories of rationality the Habermasian theory is (largely) unsuspicious of the sources of the beliefs and preferences that individuals articulate as the baseline of democratic deliberation. This means that, on the Habermasian account, communicative rationality must have tremendous corrective power—it must be able to reveal and overcome beliefs that are distorted before deliberation begins.
9
If, as I hypothesize, different deliberative structures lead to different political outputs solely because of their procedural structure , the Habermasian theory must rely on some substantive, pre-communicative political principles to resolve questions of legitimacy.
10
It would be one thing if real world deliberation were muddled by the pathologies of deliberation only because of individual persons’ weakness of the will or failure to state criticizable public political claims, but another thing altogether if deliberation were muddled because of fundamental psychological features of deliberation. If the later is true, it seems unlikely that participatory democracy could ever come even reasonably close to an ideal speech situation for the purpose of providing and making public information necessary to meet the requirements of justice.
11
Furthermore, in spite of a critical awareness of the historical forces that shape practices of legitimation, Habermas’s theory still gives legitimating force to deliberative practices that
8
H
ABERMAS
, supra
9
See 1 H ABERMAS , T HEORY OF C OMMUNICATIVE A CTION , supra
perspective of reconciliation and freedom is ingrained in the conditions for the communicative sociation of individuals; it is built into the linguistic mechanism of the reproduction of the species.”).
10
See J EAN -F RANÇOIS L YOTARD , P OSTMODERN C ONDITION 65 (Geoff Bennington & Brian
Massumi trans., 1984) (“There is no reason to think that it would be possible to determine metaprescriptives common to all of these language games or that a revisable consensus like the one in force at a given moment in the scientific community could embrace the totality of metaprescriptions regulating the totality of statements circulating in the social collectivity. As a matter of fact, the contemporary decline of narratives of legitimation . . . is tied to the abandonment of this belief.”).
11
Cf.
H ABERMAS , B ETWEEN F ACTS AND N ORMS , supra
note 5, at #. I am grateful to Frank
Michelman for suggesting this argument.
Gingerich reflect particular ideological commitments. Habermas would argue that certain deliberative practices better approximate the ideal speech situation than do others because they decrease the influence of wealth and power on participatory democracy, but I will argue that, ultimately, the role of ideology cannot be eliminated from deliberation, only rearranged. Habermas could overcome this by specifying substantive political principles, but any commitment to such principles must, I will argue, come prior to deliberation.
B. Toward Recognizing the Ideological Structure of Deliberative Democracy
Political theorists and philosophers have undertaken significant studies of deliberative democracy and its implications for democratic legitimacy in the past decade.
12
Social psychologists have also produced substantial literature on how group processes affect decisionmaking.
13
Some authors have examined the impact that the psychological structures of group decision-making can have on deliberation about politics.
14 In this essay, I will use the
5
12 See A
CKERMAN
& F
ISHKIN
, supra
AMES
B
OHMAN
, P
UBLIC
D
ELIBERATION
(1996) [PARENTHETICAL]; R
OBERT
E.
G
OODIN
, R
EFLECTIVE
D
EMOCRACY
(2003) [PARENTHETICAL]; D EBATING D ELIBERATIVE D EMOCRACY (James S. Fishkin & Peter
Laslett eds., 2003) [PARENTHETICAL]; D
ELIBERATIVE
D
EMOCRACY
(Jon Elster, ed., 1998)
[PARENTHETICAL]; D
ELIBERATIVE
D
EMOCRACY
: E
SSAYS ON
R
EASON AND
P
OLITICS
(James
Bohman & William Rehg, eds., 1997) [PARENTHETICAL]; D ELIBERATIVE P OLITICS : E SSAYS
ON D EMOCRACY AND D ISAGREEMENT (Stephen Macedo, ed., 1999) [PARENTHETICAL]; A MY
G
UTMANN
& D
ENNIS
T
HOMPSON
, D
EMOCRACY AND
D
ISAGREEMENT
(1996) [hereinafter
G UTMANN & T HOMPSON , D EMOCRACY AND D ISAGREEMENT ] [PARENTHETICAL]; A MY
G UTMANN & D ENNIS T HOMPSON , W HY D ELIBERATIVE D EMOCRACY ? (2004) [hereinafter
G
UTMANN
& T
HOMPSON
, W
HY
D
ELIBERATIVE
D
EMOCRACY
?] [PARENTHETICAL];
H
ABERMAS
, B
ETWEEN
F
ACTS AND
N
ORMS
, supra
ENRY
S.
R ICHARDSON , D EMOCRATIC A UTONOMY : P UBLIC R EASONING A BOUT THE E NDS OF P OLICY (2002)
[PARENTHETICAL]; C
ASS
S
UNSTEIN
, D
ESIGNING
D
EMOCRACY
(2001) [PARENTHETICAL]; see also C
OLIN
C
ROUCH
, P
OST
-D
EMOCRACY
(2004) [PARENTHETICAL]; M
ARK
T
USHNET
,
T AKING THE C ONSTITUTION A WAY FROM THE C OURTS (1999) [PARENTHETICAL].
13
See, e.g.
, B LACKWELL H ANDBOOK OF S OCIAL P SYCHOLOGY : G ROUP P ROCESSES (Michael A.
Hogg & R. Scott Tindale, eds., 2001) [PARENTHETICAL].
14
See David Schkade, Cass R. Sunstein, & Reid Hastie, What Happened on Deliberation Day?
95 C AL .
L.
R EV . 915, # (2007); S UNSTEIN , supra
ASS S UNSTEIN , I NFOTOPIA #
(2006).
Gingerich 6 psychological literature to address whether and how democratic deliberation can provide reasons for legal legitimacy, and I will explore the implications of empirical findings about group decision making for the theoretical account of democratic legitimacy.
15
In Part II, I will describe theories of democratic deliberation and legal authority. I will set out a typology of theories of deliberative democracy, limit my scope to theories that claim that democratic deliberation can provide constitutive reasons for legal authority, and explore the requirements of democratic deliberation from the standpoint of political theory.
In Part III, I will summarize the social psychological literature, and will explore what empirical evidence about group processes, and particularly deliberation about politics, has for democratic deliberation in practice. I will describe different ways in which deliberation can rearrange individual preferences and political commitments and explore how framing of democratic deliberation inevitably shapes outcomes.
My principle argument, which I will develop in Part IV, has two prongs. The first, weaker prong is that in any society even roughly resembling the United States in 2008, democratic deliberation cannot provide a reason that any law is legitimate, because it must rest on a fully adequate constitutional framework in order to reflect the values necessary for the creation of political legitimacy. According to this argument, the procedural structure of democratic deliberation will have predictable ideological impacts on the outcome of deliberation, so to be truly democratic, any deliberative structure must be justified with reference to some
15
There is a fundamental tension in my argument: I advance a deep skepticism about the possibility of deliberation and take a highly critical stance, but in doing so, I rely heavily on
“objective” social sciences, which constitute a much more liberal methodological approach. My argument should, therefore, be conceptualized as an internal criticism of the coherence of the system of thought that liberal deliberative democracy theory represents rather than a methodologically foreign and independent assault on such theories. I am grateful to Yochai
Benkler for raising this point.
Gingerich 7 independent procedural rule for structuring the deliberation. In order for any foundational rules of deliberation to be justified, they must ensure that every political agent is able to equally participate in and influence the decision making process. Because of the pervasive effects of geographical grouping of social groups, social hierarchy, and unequal resources, these conditions necessary to justify any foundational rules for deliberation are not likely to obtain absent radical social change.
My second, stronger claim is that democratic deliberation can never provide a reason that a law is legitimate. Readers can accept my first claim without accepting my second claim, which argues that any attempt to develop a framework for democratic deliberation that could generate reasons for legitimacy will inevitably by infected by ideology. I will argue that any attempt to establish neutral background rules will fail, because different structures of deliberation will always have differential impacts on the motivational structures of participants, which will have predictable political outcomes. Because of this ideological infection, any structure of deliberation will be based on certain ideological structures, and cannot generate neutral reasons for laws’ legitimacy. These reasons must, then, come from some source other than democratic deliberation.
This is an attack on conseqentialist theories of democratic deliberation, not deontological theories. Following Henry Richardson, I am concerned “with the will of the people as developed and expressed in actual democratic procedures, and whether it is plausible to think of it as being given a constitutive voice affecting what it is that we ought, democratically, to do.”
16
For
16
Henry S. Richardson,
Our Call: The Constitutive Importance of the People’s Judgment
, J.
M
ORAL
P
HIL
. (forthcoming), manuscript at 5, available at http://www1.georgetown.edu/departments/government/programs/speakerseries/27718.html (all page references are to the version available at the Georgetown website); cf. Jon Elster,
Introduction to D
ELIBERATIVE
D
EMOCRACY
1 (Jon Elster, ed., 1998) [PARENTHETICAL].
Gingerich 8 instance, my argument does not touch on Rawls’s justice as fairness, nor does it touch on Jeremy
Waldron’s deontological account of deliberation.
17 Likewise, my argument is not an attack on purely normative accounts of deliberative democracy. It does not undermine theories that aim only to set out what democratic society should look like on the basis of purely normative reasons. It does, however, refute theories of democratic legitimacy that rely on any claims about what democratic deliberation will accomplish in society as it is presently constituted and theories that justify certain structures of democratic deliberation with reference to their actual political outcomes. My argument is also not that deliberation is less legitimate than other modes of decision-making; I argue that the laws it generates ought not to be considered authoritative simply because they are outputs of deliberative democratic systems.
II.
D
ELIBERATIVE
D
EMOCRACY AND
A
UTHORITY
In this section, I will first summarize contemporary theories of deliberative democracy and explore how these theories relate to legal authority. I will then describe the institutions that deliberative democracy requires.
A. What is Deliberative Democracy?
Deliberative democracy is (1) democratic and (2) deliberative. (1) means that a deliberative democracy decides what laws to enact and enforce collectively, with every member of the association who will be affected by the decision participating, either directly or through a representative.
18
(2) means that a deliberative democracy goes about making these decisions by
17
See J
OHN
R
AWLS
, P
OLITICAL
L
IBERALISM
# (1996) [PARENTHETICAL]; J
EREMY
W
ALDRON
,
L AW AND D ISAGREEMENT # (1998) [PARENTHETICAL].
18 See Elster, supra
supra
Gingerich 9 means of the affected members or their representatives publicly reasoning with one another.
19
This typically means that the members or their representatives must be committed to impartiality and rationality.
20
These are only the baseline requirements for deliberative democracy. Even within a democratic ideological frame, it is far from clear what “democratic structures” are, and different theorists flesh out these baseline requirements in different ways. Typically, they include some constraint on the substantial fairness of the democratic deliberation, so that deliberation is not unfairly skewed by unjustified distributions of resources or power. Theorists of deliberative democracy typically require that the reasons given in public deliberation be “mutually acceptable.” 21
This means that the reasons given for adopting a particular law must be reasons other than mere self-interest; they must somehow persuade other people that it is in the public good to adopt a certain law.
22
As Jon Elster notes, there are three aspects of democratic deliberation: arguing, voting, and bargaining.
23
Arguing is an attempt to appeal to reason to transform other people’s preferences.
24
It requires an appeal to impartial values, since simply asserting one’s own interest
19
See Richardson, supra
note 16, manuscript at 5. It would be a mistake to think of deliberation
as an on/off switch; deliberation can take many different forms, and it is difficult even to image a political situation in which there would be no deliberation.
20
See Elster, supra
21 G
UTMANN AND
T
HOMPSON
, W
HY
D
ELIBERATIVE
D
EMOCRACY
?, supra
22
Id.
at 4.; see B
RUCE
A.
A
CKERMAN
, S
OCIAL
J
USTICE IN THE
L
IBERAL
S
TATE
, 10 (1980) (“No reason is a good reason if it requires the power holder to assert: (a) that his conception of the good is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the good, he is intrinsically superior to one or more of his fellow citizens.”);
Joshua Cohen, Deliberation and Democratic Legitimacy , in D ELIBERATIVE D EMOCRACY : E SSAYS
ON R EASON AND P OLITICS , supra
23
Elster, supra
24
Id.
(noting that both Habermas and Rawls believe that “political choice, to be legitimate, must be the outcome of deliberation about ends among free, equal, and rational agents
.”). Such arguing might include appeals to emotion (and, in practice, it almost always does), but such
Gingerich 10 will probably not change other people’s minds. Arguing is also often about factual matters, since people have the best chance of persuading each other by changing others’ opinions on causal questions than on deeply held values.
25
Bargaining occurs when participants trade off their preferences against each other; outcomes depend on the resources that parties have to make credible threats and promises.
26
Voting, unlike bargaining and arguing, is not a form of communication but is simply the aggregation of preferences.
27
The preferences that are aggregated through voting need not be narrowly self-interested preferences; they can also be political preferences that refer to the public good.
28
In this essay, I will concern myself primarily with arguing, rather than with voting and bargaining, though it may not be possible to separate these from each other entirely, and in a deliberative democratic structure, bargaining and voting are always present in the background.
29
I will examine what role deliberation in particular has for legal authority, and how procedures for arguing impact the ability of individual citizens to participate in deliberative democracy.
B. Deliberative Democracy and Authority appeals must be criticizable, and they must be the sorts of claims that are likely to get other people to change their minds. 1 H ABERMAS , T HEORY OF C OMMUNICATIVE A CTION , supra
at 398 (“A process of self-preservation that has to satisfy the rationality conditions of communicative action becomes dependent on the integrative accomplishments of subjects who coordinate their action via criticizable validity claims.”).
25 Elster, supra
26
Id.
at 6-7.
27
Id.
28
See, e.g.
, J EAN -J ACQUES R OUSSEAU , T HE S OCIAL C ONTRACT # (Maurice Cranston, trans.,
1968) [PARENTHETICAL].
29
An exception to this would be a consensus-based system that does not rely on voting. See
H ABERMAS , supra
note 12, at #. However, since I am concerned with actual applications of
deliberative democracy, I will, for the most part, not concern myself with these theories.
Gingerich 11
Some theories of democratic deliberation think that the fact that deliberative democracy generates a law is a reason that the law is authoritative or legitimate.
30 In other words, they think that deliberative democratic ratification provides a normative reason to follow a law.
31
A fullblown coherentist, pragmatic theory of democracy might treat democratic ratification as a necessary and sufficient condition for legal authority.
32
Standing opposite such a theory are objective theories of authority that hold that the simple fact that a law is the outcome of democratic procedures can never be even a prima facie reason that the law has legal authority.
33
Between these two theories are mixed theories that view democratic ratification as a certain sort of reason to treat a given law as having legal authority but maintain that there is also a balance of reasons as to whether the law is authoritative independent of this reason.
34
Additionally, on my reading there is a spectrum of approaches to deliberative democracy that range from more theoretical accounts, concerned to a greater extent with ideal conditions of deliberation, to more practical accounts, concerned to a greater extent with how deliberation might take place in the real world. Jürgen Habermas lies toward the theoretical end of this spectrum, while Amy Gutmann and Dennis Thompson lie near the center, and James S. Fishkin,
30
See, e.g.
, Joshua Cohen, Procedure and Substance in Deliberative Democracy , in
D ELIBERATIVE D EMOCRACY : E SSAYS ON R EASON AND P OLITICS , supra
Richardson, supra note 7, at 18.
31
My argument is only about whether democratic deliberation can provide normative authority to laws, not whether it can provide political authority. That is, I am not concerned with the question of whether deliberative democratic institutions make people more likely in practice to obey laws, only with whether such institutions themselves provide reasons that their laws ought to be obeyed.
32 See, e.g.
, Tom Christiano, Authority , in S
TANFORD
E
NCYCLOPEDIA OF
P
HILOSOPHY
(Edward N.
Zalta, ed., Fall 2004), http://plato.stanford.edu/archives/fall2004/entries/authority
[PARENTHETICAL].
33
See, e.g.
, Scott J. Shapiro, Authority , in T HE O XFORD H ANDBOOK OF J URISPRUDENCE AND
P
HILOSOPHY OF
L
AW
432, # (Jules Coleman and Scott Shapiro eds., 2002) [PARENTHETICAL].
34
See, e.g., David Estlund, Beyond Fairness and Deliberation: The Epistemic Dimension of
Democratic Authority , in D ELIBERATIVE D EMOCRACY : E SSAYS ON R EASON AND P OLITICS , supra
note 12, at 173, 182; Richardson,
supra
Gingerich 12
Bruce Ackerman, and Cass Sunstein lie toward the practical end. The weak argument developed in Part IV-A of this paper cuts against the theorists at the practical end of the spectrum. The strong argument developed in Part IV-B cuts against all of these mixed theories, to the extent that they claim that democratic deliberation can, by itself, provide normative reasons to treat a law as legitimate or authoritative.
1. Coherentism
This position argues that each person ought to submit to the outcome of democratic deliberation.
So if they advocate some policy on the grounds that it conforms to what they take to be the correct principle of justice, J , and the majority chooses a different policy on the grounds of an incompatible principle, L , the [coherentist] democratic theory says that they ought to accept the policy that is grounded in L because only in this way do they accord the proper equal respect to their fellow citizens.
35
On this account, all that matters for legitimacy is that a law be ratified in accordance with an acceptably fair procedure. According to this view, there are political reasons for and against any policy that are independent of what the polity agrees on.
36
However, no matter how strong one believes the political reasons for a given policy to be, once a different policy based on conflicting principles has been democratically ratified, the ratified policy is fully legitimate. If a law is passed according to the correct procedures that says “don’t spit on the sidewalk” it not only gives every member of the society a reason not to spit on the sidewalk but also excludes every other reason that there could be for spitting on the sidewalk, at least to the extent that the topic of the legislation is an appropriate issue on which to legislate.
37
This is an extreme position, and it is
35
Christiano, supra
36
For any theory of deliberative democracy that requires public reasoning that amounts to anything more than an aggregation of private preferences, there must be such reasons.
37
See infra note 38 and accompanying text. I follow Raz’s account of exclusionary reasons in my description of the cohrentist account. While most theories of democratic deliberation do not require the reasons for action provided by legitimate laws to be exclusionary, following
Gingerich 13 not clear that any advocates of deliberative democracy actually go this far.
38
However, it does represent the end of the spectrum of theories that grants the most constitutive authority to democratic decision-making.
2. Objectivism
In contrast to this coherentist approach are theories that argue that the balance of reasons for acting or not acting in a particular way is never affected by whether a deliberative democracy has ratified a law.
39 This approach says that any policy must be justified by reference to objective political principles. “If there is a fact of the matter as to what we ought to do in a given situation then, given the multiplicity of considerations that impinge on what we ought to do, there must be objective reasons bearing on each alternative course of action.” 40
Human judgment is always fallible, and people often make mistakes about where the balance of reasons lie, so a person or a group’s judgment about where the balance of reasons lies cannot itself affect the objective balance of reasons. Theorists who take this stance tend to think that theories that say that democratic ratification is itself a reason a law has legitimacy illegitimately bootstrap reasons into existence. If there is no reason for me to take some action (say, to
), presumably simply deciding to
should not itself provide a reason to
. Likewise, it is unclear why having a deliberative assembly decide I should
in the absence of any other reasons for me to do so gives me a reason to
. 41
This theory can still say that deliberative democracy is a good idea—however, the reason that it is good is not that it provides legitimacy to laws, but that it is good for some other reason.
Christiano’s characterization of the coherentist position, I treat any such theories that do not give exclusionary force to a legitimate law as “mixed theories” rather than coherentist theories.
38
See Estlund, supra
39
See Richardson, supra
40
Id.
at 4.
41 See id.
Gingerich 14
(For instance, it might be that democratic procedures are fair,
42
develop desirable character traits in citizens, 43 or are simply more likely than any other form of government to generate outcomes that are relatively close to where the objective balance of reasons lies.
44
) However, the reasons that deliberative democracy might be good, on this account, do not arise from democratic deliberation but rest on independent, objective political principles.
3. Mixed Theories
Mixed theories stand between the coherentist and objectivist theories, and hold that the fact that democratic deliberation generates a law is a factor to consider in determining whether the law is legitimate. The rules of democracy, then, give some constitutive authority to what the people decide.
45
This position accepts that democratic deliberation must be about something other than the mere aggregation of preferences, so there must be some independent standards for
42
See Shapiro, supra
note 33, at # [PARENTHETICAL].
43
See David Copp, in The I DEA OF D EMOCRACY , supra
note 2, at 113 [PARENTHETICAL];
see also David Dyzenhaus, The Legitimacy of Legality , 46 U.
T ORONTO L.
R EV . 129, 180 (1996)
[PARENTHETICAL].
44
See Estlund, supra
note 34, at 183. This differs slightly from the position Estlund ends up
advancing, which he calls “epistemic proceduralism” and which is an instance of a mixed theory because it provides that it is possible to think that a judgment is morally mistaken but still morally binding on citizens as citizens for procedural reasons. Id.
at 185. Like the theories of deliberative democracy described below, the non-epistemic aspect of its legitimacy hinges on its fairness: the reason to obey laws in non-epistemic cases (i.e. where a citizen has good reasons to think that the majority was wrong) is the procedural fairness of deliberative democracy. Id.
at
195.
45
Richardson, supra
see also Habermas, Constitutional Democracy , supra
at 779.
[I]n the role of persons who act morally, legal persons must also be able to follow the law out of respect for the law. For this reason, valid (in the sense of existing) law must also be legitimate. And the law can satisfy this condition only if it has come about in a legitimate way, namely, according to the procedures of democratic opinion- and will-formation that justify the presumption that outcomes are rationally acceptable. The entitlement to political participation is bound up with the expectation of a public use of reason: as democratic colegislators, citizens may not ignore the informal demand [Ansinnen] to orient themselves toward the common good.
Id.
Gingerich 15 what constitutes the public good.
46
This aligns with the restriction on deliberation that what citizens’ want must be supported by reasons; deliberation entails making objective claims in order to persuade other people.
47
Henry Richardson explains how it is possible for democratic ratification to provide a reason to regard a law as authoritative without providing a necessary and sufficient reason with reference to the effect of wide scope normative operators: the “ought” of the proposition that “we ought to treat a law that is the outcome of democratic deliberation as legitimate” comes outside of a conditional.
48
For instance, if we adopted the normative requirement that “[w]e ought, if the duly-elected legislature has enacted a law on the basis of properly majoritarian procedures, to accept that law as legitimate,” then acceptance of the wide-scope normative requirement does not commit us to the conclusion that the law is legitimate.
49
(That is to say, we could deny the premise of the conditional statement.) On this account, individuals must make their own decisions about the political justification of laws, but it is possible that the decision by the democratic society to follow a particular course of action will be a reason for them to think that that decision is legitimate.
4. What is Legitimate Authority?
While many theories of deliberative democracy treat democratic ratification as giving some normative force to laws, it is often not fully clear what exactly this normative force is, and theorists that focus on democratic deliberation often leave questions of legitimate authority
46
Henry S. Richardson, Democratic Intentions , in D
ELIBERATIVE
D
EMOCRACY
: E
SSAYS ON
R EASON AND P OLITICS , supra
see supra
47
See Sunstein, supra
48
Richardson, supra
49
Id.
at 16. Richardson does not advance a comprehensive case for accepting this principle, and does not necessarily defend it. It is simply an example of what a political principle regarding political legitimacy of democratically made laws might look like.
Gingerich 16 under-theorized. One possible account of what sort of normative force democratic ratification generates is that it makes laws authoritative in the sense that Joseph Raz uses the term
“authority.” The following illustration of Razian authority is simply one way that democratic deliberation might generate normative force. This account is largely cabined in contemporary legal positivism and particularly in the thesis that “what is law and what is not is largely a matter of social fact.” 50
Additionally, it is important that “it is an essential feature of law that it claims legitimate authority.” 51 Part of what makes law, law is its claim to have legitimate authority.
On this account, law is authoritative “if the existence of a law requiring a certain action is a protected reason for performing that action; i.e. a law is authoritative if its existence is a reason for conforming action and for excluding conflicting considerations.”
52
To unpackage this a bit, a law is authoritative if (1) it is, by its very existence, a reason for a person (say, A ) to do something (say, to
) and (2) it is, by its very existence, a reason to disregard reasons against taking that action. To be authoritative, a law that says, “let
A
” must be a reason for
A to
. It cannot only be that A has a reason to
because of penalties for not
ing, or because of social approbation for not following the law, or for any other reason other than the law’s existence
(thought these might also be reasons for A to
).
Additionally, however, an authoritative law must be a reason to disregard reasons that A might have for not-
ing. As Raz says, “[t]he law’s claim to legitimate authority is not merely a claim that legal rules are reasons. It includes the claim that they are exclusionary reasons for disregarding reasons for non-conformity.”
53
This means that the law has to be a reason for A not even to consider some reason (say, P ) for not-
ing. This does not mean that A cannot not-
, but
50
J
OSEPH
R
AZ
, T
HE
A
UTHORITY OF
L
AW
37 (1979).
51
Id. at 30.
52
Id.
at 29.
53 Id.
at 31.
Gingerich 17 that A cannot not-
on account of P . This is compatible with not-
ing for some other reason. It follows from this that law must claim to be legitimate, because it claims to be a real reason to tip the balance of reasons towards acting in conformity with it. If the law lacks legitimate moral authority, then it cannot be a protected reason that tips the balance of reasons.
In order for a law to be legitimate, it must have some justification. This could be provided in a number of ways. One might formulate political principles that justify laws (e.g. political equality, Rawls’s two principles of justice, etc.). One might also formulate procedural principles that say that a law generated by following a particular procedure is legitimate. Either way, there must be a reason of some sort for a law to be legitimate, and it must not be overridden by other reasons that the law should not be regarded as legitimate. This Razian story illustrates how normative requirements generated by democratic deliberation might function, but they might also function in other ways. (For instance, they might provide a reason for A to
without providing an exclusionary reason.) I will use this story as an example of how normative force generated by democratic deliberation might work in instances when theories of democratic deliberation do not provide a theoretical account of this process.
C. Fairness and Deliberative Democracy
Most theories of deliberative democracy claim in some fashion that democratic deliberation justifies treating laws that it generates as legitimate because it is procedurally fair.
Though these arguments could, in principle, be coherentist accounts, they tend in actuality to be part of mixed accounts, and since I take that to be more persuasive than the coherentist account, I will address them in their mixed theory formulation.
1. Deliberative Democracy and the Value of Fairness
Gingerich 18
Many of the basic formulations that theorists offer of deliberative democracy in some way incorporate considerations of the equality of participants in democratic deliberation and the fairness of the process.
54
These basic commitments are specified very differently in different theories. Some theories impose comprehensive requirements of civic education and welfare
55
; others merely require that everyone be allowed one vote and that no restrictions be placed on individuals’ ability to use their own money to pay for political advertisements.
56
Regardless of how, precisely, the fairness requirement is formulated, it is central to the claim that outcomes of democratic deliberation have normative authority. Joshua Cohen’s account of deliberative democracy is one example of the importance of fairness in the deliberative process to its legitimating function. For Cohen, in a just society, political opportunities and powers must be available equally to everyone without reference to economic or social position—they must be “manifestly fair.” 57 This manifest fairness is explicitly tied to the legitimacy of laws: “[t]he fundamental idea of democratic, political legitimacy is that the authorization to exercise state power must arise from the collective decisions of the equal members of a society who are governed by that power.” 58
If democratic deliberation could not ensure that its outcomes were the collective decisions that equally represented all the affected members of a society, it would not only fail to legitimate laws or state action, but it would be a less legitimate system than any other system that better represented all members of society.
54
See, e.g.
, Cohen, supra
note 30, at 412 (“The deliberative conception of democracy is
organized around an ideal of political justification. According to this ideal, to justify the exercise of collective political power is to proceed on the basis of a free public reasoning among equals.”).
55
See, e.g.
, G UTMANN & T HOMPSON , D EMOCRACY AND D ISAGREEMENT , supra
56
See, e.g.
, Buckley v. Valeo, 424 U.S. 1, # (1976) (holding that spending money on a political campaign is a form of free speech protected by the First Amendment).
57
Cohen, supra
58
Joshua Cohen, Democracy and Liberty , in D ELIBERATIVE D EMOCRACY 185, # (Jon Elster, ed.,
1998).
Gingerich 19
Cohen goes further to explain how it can be that this requirement of rough equality in deliberative democracy can justify legitimacy: deliberative democracy requires that every person governed by a collective decision must find that the political bases of the decision acceptable, even if they disagree with the details of the decision.
59
This is an outgrowth of the deliberation requirement of deliberative democracy, which requires that citizens of a democracy engage in public reasoning designed to advance reasons that could be accepted by anyone.
Similarly, in Amy Gutmann and Dennis Thompson’s view, democratic deliberation is a reason-giving activity aimed at “free and equal persons seeking fair terms of cooperation.”
60
This conception of fairness is connected with strong claims that “[d]eliberation is the most appropriate way for citizens collectively to resolve their moral disagreements not only about policies but also about processes by which policies should be adopted.”
61
The foundational importance of fairness and equality to Gutmann and Thompson’s account makes this claim about the appropriateness of deliberation hinge on the ability of deliberative democracy really to deliver on its promise of political equality.
62
James Fishkin emphasizes a similar importance for fairness in deliberative democracy.
For Fishkin, the four principle values of democracy are deliberation, non-tyranny, political equality, and participation.
63 Fishkin argues that the reason that his “Deliberative Polls” are
“representative of the public the people would become if everyone had a comparable opportunity to become more like ideal citizens and discuss the issues face to face with other voters and
59 Id.
at 222.
60
G
UTMANN
& T
HOMPSON
, W
HY
D
ELIBERATIVE
D
EMOCRACY
?, supra
61
G UTMANN & T HOMPSON , D EMOCRACY AND D ISAGREEMENT , supra
62
Additionally, Gutmann and Thompson are committed to a practical account of decisions about moral issues. See id.
at 5 (“In our use of this method, the principles operate in the middle range of abstraction, between foundational principles and institutional rules; and the judgments apply as much to particular decisions and policies as to the basic structures of society.”).
63 J
AMES
S.
F
ISHKIN
, T
HE
V
OICE OF THE
P
EOPLE
173 (1994).
Gingerich 20 political leaders” 64
is that it offers a representation of a democracy that embodies the four values he identifies.
65 For Fishkin, as for Cohen and Gutmann and Thompson, the deliberation’s capacity to ensure a fair and equitable distribution of political power is central to what makes deliberative democracy legitimate; it is also a reason to support his and Ackerman’s concept of
“Deliberation Day.” 66
Cass Sunstein’s description of a democratic system also requires that a “democratic system must be built on various safeguards to ensure that its decisions are in fact a reflection of deliberative processes” that can be “favorabl[y] characteriz[ed].” 67
The preconditions of political sovereignty are violated if the government power is not justified by reasons given in a discussion.
68
This means that the problems that “such processes are distorted by the fact that some groups are more organized than others, by disparities in wealth and influence, and by public and private coercion of various kinds” must be overcome.
69 In his account of the
American Constitution, then, such problems must be overcome so that the constitutional system can “ensure discussion and debate among people who are differently situated, in a process
64
Id.
at 163.
65
Id. at 173 (“With a deliberative atmosphere of mutual respect, tyranny of the majority is unlikely. When all the citizens are effectively motivated to think through the issues, when each citizen’s voices count equally, and when every member of the microcosm participates, the other three values are realized as well.”).
But see Henry S. Richardson, Public Opinion and Popular
Will , in D
ELIBERATIVE
D
EMOCRACY
: T
HEORY AND
P
RACTICE
(David Kahane, Dominique Leydet,
Daniel Weinstock & Melissa Williams, eds., forthcoming) # (arguing that that deliberative polls are not good proxies for actual democratic deliberation because authority not simply to discuss but actually to make decisions is central to the idea of democratic deliberation).
66
See F
ISHKIN
& A
CKERMAN
, D
ELIBERATION
D
AY
, supra
67
Sunstein, supra
68
C ASS R.
S UNSTEIN , R EPUBLIC .
COM 2.0, at 40 (2007).
69 Sunstein, supra
Gingerich 21 through which reflection will encourage the emergence of general truths.”
70
For Sunstein, it seems, democratic deliberation can generate “general truths,” 71 but it can do so only if the requisite requirements of deliberative fairness and impartiality are satisfied. Sunstein also argues that citizens of democracies must make certain that “deliberative forces should prevail over the arbitrary,” implying that the outcomes of democratic deliberation must, in some important way, be non-arbitrary.
72
Roberto Gargarella, who thinks that democratic deliberation can help political systems to make impartial decisions and believes that the “Founding Fathers” of the United States thought the same thing, further elucidates the mechanisms through which deliberation might work to increase impartiality (and fairness) in democratic decision-making.
73
First, it can decrease ignorance about the actual preferences or interests of other individuals. Second, it can force people to filter out arguments that are merely self-interested as they engage in the process of public reasoning. Third, it can educate people to act impartially by training people to exchange opinions and better listen to other people’s arguments. Fourth, it can help each participant in deliberation better formulate her own position (e.g., resolving transitivitiy problems in one’s preference ordering, correcting erroneous factual beliefs, etc.).
74
These seem to be the mechanisms at play in most accounts of deliberative democracy that rely on its ability to generate equality or fairness to justify its outputs as legitimate and authoritative.
75
70
C ASS R.
S UNSTEIN , T HE P ARTIAL C ONSTITUTION , 253 (1993); see also S UNSTEIN , supra note
at xii (“Democracy . . . is at risk whenever people sort themselves into enclaves in which their own views and commitments are constantly reaffirmed.”).
71
Presumably, these truths are context-independent truths.
72
S UNSTEIN , supra
73
See Roberto Gargarella, Full Representation, Deliberation, and Impartiality , in D
ELIBERATIVE
D
EMOCRACY
260, # (Jon Elster, ed., 1998).
74
See Gargarella, supra
75 See supra note 4.
Gingerich 22
The proposition that proper democratic deliberation is fair and impartial is, therefore, central to the belief that ratification by democratic deliberation can provide a reason that a law is legitimate. In order for the foregoing theories of deliberative democracy to succeed in their justificatory projects, the deliberative processes must at least be capable of producing the sort of impartiality and equality that they envision.
76
I will examine this proposition in some detail in
Parts III and IV of this essay.
2. Pragmatic Theories
The foregoing accounts of deliberative democracy require significant commitment to political principles of equality, and tend to be committed to deliberation as a justificatory activity only in a society that looks substantially different than contemporary North American society.
There are, however, more pragmatic theories of deliberative democracy that are willing to grant that democratic deliberation can generate legal authority without such radical moves toward greater political fairness and impartiality. For instance, on Mark Warren’s account, democratic authority is “generated neither by the authoritative status of expertise or beliefs as such nor by the authoritative status of rules and procedures; instead it comes from a set of institutionalized protections and securities within which the generative force of discursive challenge is possible.” 77 On this account, the discursive challenge need not be exercised in order for a law to be authorized; the possibility of discursive challenge is sufficient. Theories such as this may provide more accurate descriptions of how activists or revolutionaries might think of a society in
76
I say that they only need to be capable of doing so, not that they must do so in actuality, because many of them envision a world substantially different from the status quo in which deliberation should take place. They must, however, be capable of producing the sort of impartiality and fairness that they envision with procedural changes to the status quo (and perhaps limited substantive changes), since all of the theories that concern me purport to be practical, rather than merely ideal, theories of democratic deliberation.
77 Mark E. Warren, Deliberative Democracy and Authority , 90 A
M
.
P
OL
.
S
CI
.
R
EV
. 46, 57 (1996).
Gingerich 23 which they are able to disrupt decision-making practices by issuing discursive challenges to majority proscriptions. They might see a deliberative democracy as a society that gives room to critical consciousness, rather than one that has deliberative procedures that are per se fair and impartial. I will not focus on these theories in my press on deliberative democracy theories, and
I think that such accounts of deliberation might offer a fruitful alternative to accounts of deliberative democracy that make hopelessly idealistic assumptions about the possibility of political impartiality.
3. Alternative Justifications of Democratic Deliberation
There are justifications of deliberative democratic authority within a mixed theory framework other than that democratic deliberation generates political legitimacy. For instance,
James Fearon identifies six reasons that deliberation is desirable:
1.
Reveal private information
2.
Lessen or overcome the impact of bounded rationality
3.
Force or encourage a particular mode of justifying demands or claims
4.
Help render the ultimate choice legitimate in the eyes of the group, so as to contribute to group solidarity or to improve the likely implementation of the decision
5.
Improve the moral or intellectual qualities of the participants
6.
Do the “right thing,” independent of the consequences of discussion 78
Diego Gambetta offers four reasons:
7.
It render the outcomes of the decisions Pareto-superior by fostering better solutions
[since it will introduce more imagination into discussions];
8.
It can make the outcome fairer in terms of distributive justice by providing better protection for weaker parties;
9.
It can lead to a larger consensus on any one decision
78
James D. Fearon, Deliberation as Discussion , in D ELIBERATIVE D EMOCRACY 44, 44-45 (Jon
Elster ed., 1998).
Gingerich 24
10.
It can generate decisions that are more legitimate (including for the minority).
79
Most of the reasons identified by Fearon and Gambetta are independent of equality, fairness and legitimacy; they have to do with the decisions made by deliberative institutions being simply better by objective criteria. But both Fearon and Gambetta link these prudential considerations to legitimacy: when a political system typically generates good outcomes, the fact that it generates an outcome might be a reason to suppose that the outcome should be regarded as legitimate.
80
The existence of these reasons indicates that deliberative democracy could give authority to its ratified decisions by virtue of its ability to usually generate good outcomes. Setting aside for the moment whether it actually tends to produce good outcomes, these theories do not actually describe a situation where a law can have authority simply by virtue of being the outcome of democratic deliberation. A law might have a higher probability of being legitimate, but that is all. On this account of legitimacy, except to the extent that fairness is involved, recourse to external principles of political justice is always necessary to explain why deliberation is a reason for a law to have authority, so I take this to simply be a variant of the objectivist approach to democratic deliberation, and I will bracket it for the remainder of this essay.
III.
T HE M OTIVATIONAL S TRUCTURE OF D ELIBERATION
81
79
Diego Gambetta,
“Claro!”: An Essay on Discursive Machismo
, in D ELIBERATIVE
D
EMOCRACY
19, 24 (Jon Elster, ed., 1998).
80
Of course, these theorists also recognize that there are times when deliberation does not lead to better decisions. For instance, under certain circumstances, deliberation can waste precious time, lead people to be duped by sophists, allow self-interested lobbies to manipulate information in a debate, or make choice indeterminate. Gambetta, supra
note 79, at 21. So these theorists do not
attempt to claim that deliberation is always good. Nor, for that matter, do any other deliberative democracy theorists of whom I know.
81
In this section, I examine very concrete empirical evidence, which I then apply to fairly abstract political theory. Following Kwame Anthony Appiah, I do not claim that the empirical data can resolve normative questions, but that it can usefully inform abstract theory. See generally K
WAME
A
NTHONY
A
PPIAH
, E
XPERIMENTS IN
E
THICS
(2008) (exploring how
Gingerich 25
David Schkade, Cass Sunstein, and Reid Hastie conducted a study in which they created an experimental Deliberation Day modeled on James Fishkin’s Deliberative Polls.
82 They assembled five person groups in Boulder, Colorado, a predominately liberal city, and Colorado
Springs, a predominantly conservative city. They asked the deliberators their individual views on global warming, affirmative action, and civil unions for same-sex couples. Then they had them deliberate in five person groups about those issues and reach a decision as a group.
83
Subsequently they were again asked their individual opinion on the issues. Schkade et al. found that the groups from Boulder became more liberal after deliberation and those from Colorado
Springs became more conservative, so deliberation increased extremism.
84
Second, every group moved towards a consensus of individual opinions and diversity of individual opinions among group members decreased, even in the anonymous post-deliberation expression of individual views.
85 Third, deliberation increased the political gap between the predominantly liberal residents of Boulder and the predominantly conservative residents of Colorado Springs.
86
What happened, Schkade et al. concluded, was that “deliberation among like-minded people produced ideological amplification
—an amplification of preexisting tendencies, in which group discussion leads to greater extremism.” 87
These outcomes contrast with the results that James Fishkin obtained from deliberative polls conducted in England, Australia, and the United States. His data showed that individual opinions changed significantly, indicating that deliberation has a large effect, but he did not find experimental psychology might influence how moral philosophers construct normative arguments).
82
Schkade, Sunstein, & Hastie, supra
83
Id.
at 918-20.
84
Id.
at 918-19.
85
Id.
at 921.
86
Id.
at 922-23.
87 Id. at 917.
Gingerich 26 any significant evidence of systematic ideological amplification.
88
Schkade et al. noted several important factors that they think accounted for the difference between their data and Fishkin’s deliberative polling data. First, Fishkin’s groups had moderators, who were charged with ensuring openness of the deliberation and altering some of the dynamics of deliberation, while
Schkade et al.’s groups did not have moderators.
89
Second, Fishkin’s polls presented deliberators with a set of written materials that “attempted to be balanced and that contained detailed arguments supporting sides.” 90 Third, Fishkin instructed participants in the deliberative polls not to reach a group decision, which may have limited the effects observed in Schkade et al.’s study.
91
If Schkade et al.’s explanation for the difference between their data and Fishkin’s data is right, which seems to at least be plausible, then if an account of deliberation entails citizen discussions in a forum that looks anything like Fishkin’s Deliberation Day, or even if it just envisions occasional discussions about policies among citizens in somewhat formal institutional settings, deciding whether to provide written materials and whether to have a moderator will have important political consequences. Although it is hard to know in advance how any group of deliberators will react to a set of purportedly balanced materials, one possibility is that deliberation will reduce the tendency toward ideological amplification. There is nothing inherently good or bad about ideological amplification, so if you want more ideological amplification (say, if your views are toward one end of the political spectrum) you would want to avoid moderators and written materials in your ideal Deliberation Day, but if you want less
88
Id. at 934.
89
Id.
90
Id. at 934-35.
91 Id. at 935.
Gingerich 27 ideological amplification (say, your political opinion is right at the center of the political spectrum) then you would want impartial moderators and “unbiased” written materials.
In this part of this essay, I will attempt to show that this is just one of many political decisions to be made about the structure of deliberation. Different deliberative structures result in different deliberative outcomes. In III-A, I will set out the empirical data that show that different deliberative structures produce different outcomes, and in III-B, I will argue that an important
(though not the only reason) that different deliberative structures generate different outcomes is that they pull different motivational levers and thereby shape and transform people’s preferences and political opinions. In III-C, I will argue that because of the effects described in III-A and III-
B, decisions about how to structure deliberation always have political stakes, and will always have an impact (often a predictable one) on the outcome of deliberation. In order to win my weak argument, I only need to show that in practice, deliberative institutions always distort preferences (which is my argument in III-A).
92
In order to win my strong argument, I also need to show that deliberation is not only distorting preferences and beliefs, in which case (at least in theory if not in practice) a deliberative structure might avoid distorting those preferences and beliefs, but that deliberation determines what people’s preferences are by motivating people to change them, in which case, there is no neutral baseline of preferences and beliefs for deliberation to avoid distorting (which is my argument in III-B and III-C).
93
A. System Design Distorts the Neutrality of Deliberation
92
My weak argument is that deliberative democratic ratification does not give a law normative force in the status quo. See Part IV-A, infra .
93
My strong argument is that deliberative democratic ratification cannot give a law normative force. See Part IV-B, infra .
Gingerich 28
Generally, the impact of deliberation on group decision-making about politics is highly context dependent.
94 How it affects individual opinion will depend on the purpose of deliberation, the subject of deliberation, the participants, how deliberation is connected to authoritative decision makers or how much authority it has, what govern how deliberators interact with each other, what information is provided to the deliberators, the prior beliefs of the deliberators, and the material conditions of the society in which the deliberation takes place.
95
This extreme context dependence indicates that choices about what forms democratic deliberation should take will have a big impact on the outcomes of deliberation.
Disregarding context, when it comes to judgments for which there is a right answer, group judgments end up about as accurate as the mean judgment of their members, more accurate than the judgment of typical individuals, and less accurate than the judgments of the most accurate individuals.
96 Of course, deliberating about normative political questions is not the same as making judgments about questions that have right/wrong answers, but if there is an objective balance of reasons about what, politically, should be done (as any non-coherentist model of democratic deliberation must suppose), then it would make sense that to the extent that political deliberation hinges on causal questions like “does pornography cause rape?” or “which law best reduces transaction costs?,” we can expect the same distortions that affect non-
94
See Michael X. Delli Carpini, Fay Lomax Cook, and Lawrence R. Jacobs, Public Deliberation,
Discursive Participation, and Citizen Engagement: A Review of the Empirical Literature , 7 A NN .
R EV .
P OL .
S CI . 315, 336 (2004) [PARENTHETICAL].
95
See id.
96
Daniel Gigone & Reid Hastie, Proper Analysis of the Accuracy of Group Judgments , 121
P SYCHOL .
B ULL . 149, 153 (1997) (surveying empirical studies on group judgments across contexts).
Gingerich 29 normative reasoning to influence political deliberation.
97
This means that political judgment might be made more or less accurate by a variety of mechanisms at play in group judgment.
Generally it is also possible to say that when individuals are biased in a particular way because of a widely held belief system or heuristic, “group interaction will enhance the bias,” while if the underlying beliefs are not widely shared and deliberative groups contain at least one member who does not share the basis, group interaction lets “more accurate members . . . persuade (or correct) less accurate members.” 98 Depending on the background belief systems of group members, group decision making is likely to either increase or decrease individually held biases. The impact of group deliberation on individual bias also follows certain patterns.
99
Particularly: (1) as group size increases, the direction of bias is unchanged but the magnitude of the bias increases, (2) the direction and magnitude of group bias can change the magnitude of the bias of individuals in the group, but not the direction of individual bias, and (3) different group processes can produce radically different group biases.
100
1. Homogenization
Internal group diversity is, at least in some instances, decreased by deliberation. Solomon
Asch conduced an experiment in which he showed two cards to subjects, the first card showing a standard line and the second showing thee lines, one of which was obviously the same length as the standard and asked the subjects which lines were the same length. The subjects were placed
97
Thanks to Terry Fisher for suggesting this point.
98
Garold Stasser & Beth Dietz-Uhler, Collective Choice, Judgment and Problem Solving , in
B
LACKWELL
H
ANDBOOK OF
S
OCIAL
P
SYCHOLOGY
: G
ROUP
P
ROCESSES
, supra
99
Norbert L. Kerr, Geoffrey P. Kramer, & Robert J. MacCoun, Bias in Judgment: Comparing
Individuals and Groups , 103 P SYCHOL .
R EV . 687, # (1996).
100 Id.
at 713.
Gingerich 30 in rooms with a set of confederates instructed to give the wrong answer at certain times.
101
Asch found that when a subject was placed with a single confederate who gave the wrong answer, the subject continued to answer correctly in almost all trials, but when two confederates gave the wrong answer, the subject went along with them 13.6 percent of the time, and when three confederates all gave the wrong answer, the subject also gave the wrong answer in 31.8 percent of trails.
102
Muzafer Sherif conducted a similar experiment in which he placed subjects in a darkened room with a pinpoint of light and instructed them to gaze at a pinpoint of light. After a few minutes seemed to “move” because of a perceptual illusion called the “autokinetic effect.” He then asked the subjects to estimate how far the light had moved. Sherif found that when the trial was conducted with individuals, the answers that they gave were highly variable from person to person and trial to trail.
103 But when he conduced the experiment with groups of two or three people “the subjects’ estimates invariably began to converge and a group norm quickly developed.
104
Sherif then introduced a confederate with one naïve subject and had the confederate give estimates of the light’s movement that were consistently much higher or lower than the subject’s, and found that the subject quickly adopted the standard set by the confederate.
105
101
Solomon E. Asch, Opinions and Social Pressure , in R
EADINGS
A
BOUT THE
S
OCIAL
A
NIMAL
13, # (Eliot Aronson, ed., 7th ed., 1995).
102 Id.
at 17. Asch also found that the presence of a single confederate who gave the correct answer greatly decreased the pressure of the incorrect majority (it made the subjects four times less likely to give the wrong answer) and increasing the incorrect majority beyond three did not increase the subjects’ error rate.
103
L
EE
R
OSS
& R
ICHARD
E.
N
ISBETT
, T
HE
P
ERSON AND THE
S
ITUATION
: P
ERSPECTIVES OF
S
OCIAL
P
SYCHOLOGY
28-29 (1991).
104
Id.
at 29.
105 Id.
Gingerich 31
These studies are not about deliberation over norms and policies, but they might still have important implications for political deliberation. Many political decisions rely on causal claims
(Will a certain policy decrease or increase the GDP? Will a certain criminal law actually decrease the prohibited behavior’s frequency?) These claims often, perhaps usually, do not have clear answers, so individuals who do not care about a policy except in light of, say, its impact on the GDP may not feel very strongly about the policy itself and may be open to other group members’ causal arguments. The Asch study indicates that the size of deliberating groups might impact their outcomes, since individuals are more likely to go along with other people say if they are in a big group and everyone disagrees with them. The Sherif study indicates that when people are highly uncertain about a claim, they tend to be quite willing to go along with what other people tell them, so if people deliberate about a complicated policy, the causal consequences of which they cannot accurately evaluate, they may be likely to simply agree with what other people say, even if other people do not have any special expertise or information about the policy that they lack.
A study by Sunstein, Schkade, and Ellman bears out that homogeneity effects can crop up in policy deliberations: they found a tendency toward “collegial concurrences” on panels of
American federal circuit court judges. When judges are ideologically predisposed toward reaching a particular opinion but two other judges on their panel reach the opposite opinion, they are less likely to write a dissent than ideological data alone would predict.
106
The study also found that on highly ideologically charged issues, like abortion and capital punishment, there was no such tendency toward collegial concurrences.
107
This substantiates the findings of the
106
See Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, Ideological Voting on
Federal Courts of Appeals: A Preliminary Analysis , 90 V A .
L.
R EV . 301, 337 (2004).
107 See id.
at 339.
Gingerich 32
Sherif study in a political context—less firmly held opinions are more likely to be swayed by the opinions of other group members than are more firmly held ones.
Similarly, a study of the German Mediation Committee (Vermittlunsausschuss) found that a high level of discourse on a given issue correlated with a high probability of the Mediation
Committee reaching a unanimous decision about the issue.
108
This study also found that appeals to the common good framed in egalitarian terms enhanced the likelihood of egalitarian outcomes
(although the effect was only marginally significant).
109 This study showed that better and more extensive deliberation on a given political issue led a political body (composed of representative of the parties represented in the German Bundestag and Bundesrat ) to issue more unanimous rulings. So designs of deliberative institutions that allow for more discussion might be more likely to produce unanimous results (and hence greater group homogeneity).
2. Polarization
Empirical research also supports the point made by Schkade et al. that deliberation about politics can increase group polarization.
110
A study of French students in 1969 by Serge
Moscovici and Marisa Zavalloni found that discussion to unanimity in a small group setting led to more polarized attitudes toward De Gaulle and toward Americans.
111
The study also found that individuals tended to adopt the opinions endorsed by the group consensus as their own
108 J ÜRG S
TEINER
, A NDRÉ B ÄCHTIGER , M
ARKUS
S PÖRNDLI & M
ARCO
R.
S
TEENBERGEN
,
D
ELIBERATIVE
P
OLITICS IN
A
CTION
: A
NALYZING
P
ARLIAMENTARY
D
ISCOURSE
162-63 (2004).
The Mediation Committee is a body that mediates conflicts between the Federal Diet
( Bundestag ) and the Federal Council ( Bundesrat ). Its objective is to bridge the differences between the Diet and the Council and to reconcile conflicting interests. Id.
at 140-41. This study also found no link between the quality of political discourse and the substantive outcomes of political deliberation. Id.
at 157.
109
Id.
at 163.
110
Schkade, Sunstein, & Hastie, supra
111
Serge Moscovici & Marisa Zavalloni, The Group as a Polarizer of Attitudes , 12 J.
P
ERSONALITY
& S
OC
.
P
SYCHOL
. 125, 130-32 (1969).
Gingerich 33 opinion.
112
Deliberating about political issues in small groups can increase extremism and group polarization.
Research has shown that ideological dampening and amplification also happens on panels of circuit court judges.
113
The Sunstein, Schkade, and Ellman study found that circuit court judges appointed by a Democrat, when sitting with one Republican appointee and one
Democratic appointee, voted in a stereotypically liberal fashion 51 percent of the time. When sitting with two Republican appointees, however, a Democratic appointee cast liberal votes in only 45 percent of cases, and when sitting with two Democratic appointees, cast liberal votes 63 percent of the time. A Republican appointee, when sitting with one Republican and one
Democratic appointee, cast liberal votes in 35 percent of cases. A Republican appointees cast liberal votes only 30 percent of the time when sitting with two other Republican appointees and
45 percent of the time when sitting with two Democratic appointees.
114 Creation of groups of liberals and conservatives, either intentionally or inadvertently, may lead the opinions of such groups to polarize away from each other toward political extremes.
115
Deliberative structures
112
Id.
at 134.
113
Sunstein, Schkade, & Ellman, supra
114
Id. at 316-17.
115
These accounts of group polarization do not seem to account for cases of what Duncan
Kennedy describes as “loopification.”
See Duncan Kennedy, The Stages of the Decline of the
Public/Private Distinction , 130 U.
P
A
.
L.
R
EV
. 1349, 1354 (1982).
One's consciousness is loopified when the ends of the continuum seem closer to one another, in some moods (for some purposes, in some cases), than either end seems to the middle. Otherwise stated, one's consciousness is loopified when one seems to be able to move by a steady series of steps around the whole distinction, ending up where one started without ever reversing direction. Like wow, man.
Id. Certain ideological issues, particularly extreme political positions might loop from one end of the spectrum to the other, in which cases, it would not make much sense to describe the political views generated as polarized. In some cases, this might mean that “group polarization” can generate political consensus from two sides of the spectrum. An example might be protectionist policies favored by both cultural conservatives and pro-union liberals. It is
Gingerich 34 that favor or permit such ideological groupings will, then, have a predictable impact on the political outcomes of deliberation.
Another study shows that less institutionally bounded and clearly delimited can make political attitudes more extreme. Theodore Newcomb studied the political preferences and voting habits of students at Bennington College in the late 1930s.
116
Newcomb found that when they entered college, the students had predominantly conservative Republican political views and voting preferences, and reflected the views and preferences of their parents. After two years at
Bennington, the student’s views were far to the left of those of their parents and other Americans of their social background.
117
Newcomb also found that there was a high degree of social solidarity among the Bennington students, a high degree of exposure to political discourse, that
Bennington was largely isolated from the surrounding community.
118
Group membership, group identity, and structures of informal deliberation might be expected to play a substantial role in shaping individual beliefs and political preferences.
Sunstein makes the important point that while group deliberation leads to group polarization, it is not at all apparent that this is bad or good. Enclave deliberation, or deliberation within small groups of like-minded citizens, may produce more polarized political opinion.
119
It may undermine social stability, promote social fragmentation, and threaten security.
120 At the same time, it may be the only way to ensure that the views of low-status groups and individuals are heard and developed, because large heterogeneous groups often give less weight to the instructive to keep in mind that political extremes are “extreme” only in comparison to the background political culture.
116
Ross & Nisbett, supra
117
See id. at 35.
118
See id. at 36-7.
119
S UNSTEIN , supra
120 See id. at 15.
Gingerich 35 opinions of low-status members, including (in some contexts) women, racial minorities, and poorly educated people.
121 So whether group polarization is a good thing depends on the context and it depends on what groups you want to have political power.
3. Extremism
Some effects of group deliberation are better described as generating more extreme positions rather than simply generating group polarization. Particularly, the ideological amplification identified by Schkade et al. as a possible outcome of deliberation may operate even on groups that are not conceived primarily as in opposition to other ideologically aligned groups.
122
For example, Robert MacCoun examined the impact on mock criminal juries of extraevidentiary biases, like defendant unattractiveness or pretrial publicity biased against the defendant. MacCoun found that when the bias was weak and the prosecution’s case was also weak, the jury was more likely to return a fair outcome than an individual juror, “[b]ut when antidefendant bias is strong, juries are considerably more biased than [individual] jurors.”
123
So decisions about how to structure deliberation will have predictable impacts on whether and what biases individuals hold.
Another instance of group extremism is jury deliberation about damages. A study by
Schkade, Sunstein, and Kahneman found that once juries have decided to award punitive damages, “deliberation causes awards to increase, and it causes high awards to increase a great
121
See id.
122
See Schkade, Sunstein, & Hastie, supra
123
Robert J. MacCoun, Comparing Micro and Macro Rationality , in J UDGMENTS , D ECISIONS ,
AND
P
UBLIC
P
OLICY
116, 128 (Rajeev Gowda & Jeffrey C. Fox eds., 2002).
Gingerich 36 deal.” 124
In some cases, post deliberation jury verdicts were even higher than the highest individual pre-deliberation verdict.
125 This study found that small awards increased as a result of deliberation as well as large awards.
126
The authors explained this “severity shift” toward larger verdicts as the result of a “rhetorical asymmetry”: after the jury agreed on some award larger than zero, “the arguments for the larger award have a rhetorical advantage and are more persuasive.” 127
Deliberation in certain contexts, might systematically privilege certain political positions for which particularly rhetorically compelling arguments exist and are easy to deploy.
Group deliberation also predictably impacts judgments about risk. Studies of risk assessment have shown that individual and group risk tolerance can be either heightened or decreased by group discussion.
128
A study by James Stoner found that when people were asked to deliberate about risk in groups, items for which widely held values favored the risky alternative, “unanimous group decisions were more risky than the average of individual decisions.”
129
On the other hand, for items for which widely held values favored caution, group decisions were more cautious than the average of individual decisions.
130
Group deliberation and decision making can, therefore, generate risk tolerances that differ from the mean of individual risk tolerances. Many political decisions (particularly environmental and public health
124
David Schkade, Cass R. Sunstein & Daniel Kahneman, Debating About Dollars: The Severity
Shift , 100 C
OLUM
.
L.
R
EV
. 1139, 1155 (2000).
125
Id.
126
Id.
127 Id.
at 1161.
128
S
UNSTEIN
, supra
129
James A. F. Stoner, Risky and Cautious Shifts in Group Decisions: The Influence of Widely
Held Values , 4 J.
E XPERIMENTAL S OC .
P SYCHOL . 442, # (1968). For instance, “A football captain must choose between gaining a tie on the last play of the game or attempting a play which will bring either victory or defeat.”
Id.
at 447.
130
Id.
For instance, “A couple must choose between allowing a complicated pregnancy to continue, with danger to the mother’s life, or having the pregnancy terminated.” Id.
at 447.
Gingerich 37 decisions) require deciding how much risk to tolerate, so this effect might impact the policy choices that democratic deliberation makes.
4. Error Rates
It cannot be shown that deliberating groups generally arrive at the truth; groups often aggregate information poorly. Sometimes groups do better than their individual members, but sometimes they do worse.
131
If groups make errors about facts, they might also make errors about norms. For instance, certain types of decision errors limit the efficacy of majority rule as an aggregator of individual information and amplify individual error rates.
132
Groups are also more likely than individuals to escalate commitment to a cause of action that is failing.
133
Glen Whyte conducted an experiment that substantiates this theoretical point in which he asked subjects to make a risky investment (one with an expected return near zero) in a project.
134
When subjects were told that there were no “sunk costs” in the project, only 29 percent chose to make the risky investment. When the subjects were told that there were significant “sunk costs” in the project, 66 percent made the risky investment, and when they were informed that they were personally responsible for the sunk costs, 72 percent made the risky investment.
135
Whyte then assembled subjects into groups, and had the groups deliberate about whether to invest.
Groups made the risky investment in the no sunk costs condition 26 percent of the time, the sunk costs condition 77 percent of the time, and the sunk costs plus personal responsibility condition
131
C ASS R.
S UNSTEIN , I NFOTOPIA 57-8 (2006).
132 See, e.g.
, William P. Bottom, Krishna Ladha & Gary J. Miller, Propagation of Individual Bais
Through Group Judgment: Error in the Treatment of Asymmetrically Informative Signals , 25 J.
R ISK & U NCERTAINTY 147, 154-60 (showing how individual errors about Bayesian reasoning are not corrected by majority rule).
133
Stasser & Dietz-Uhler, supra
134
Glen Whyte, Escalating Commitment in Individual and Group Decision Making: A Prospect
Theory Approach , 54 O RGANIZATIONAL B EHAV .
& H UM .
D ECISION P ROCESSES 430, # (1993).
135 Id. at 442.
Gingerich 38
94 percent of the time.
136
Whyte also checked private individual preferences after the group deliberation, and found that after group deliberation, individuals were more likely to make the unwise investment: 30 percent in the no sunk costs position, 74 percent in the sunk costs condition, and 87 percent in the sunk costs plus personal responsibility condition.
137
Thus, group decision-making significantly magnified the individual preferences for escalation in a failing project.
138
Moreover, even when a majority of a group initially favored not escalating but where a minority favored escalation, 50 percent of the groups ultimately decided to escalate.
139 (In groups where an initial minority opposed escalation, the initial majority won out 98 percent of the time.
140 ) These results led Whyte to conclude that while “[g]roups may perform better than individuals on some tasks . . . decision making in escalation situations is apparently not one of them.” 141
If group decision-making tends to amplify commitment failing projects in which one has invested, this suggests that group decision-making might systematically increase conservatism (in the form of commitments to settled political courses of action) and entrench failed policies.
B. Non-Economic Levers of Motivation Explain these Distortions
One story about these effects of group deliberation says that the impact of deliberation on outcomes just has to do with cognitive distortions. If the distortions could be eliminated, deliberative structures might accurately reflect what people prefer or believe, and a neutral deliberative framework could accomplish this. A different story, which I will advance here, says
136 Id.
137
Id. at 446.
138
Id.
The study also found that when the dominant tendency among individuals was to forgo the risky investment (the no sunk costs condition), “group decisions increased this conservative tendency.” Id.
at 447.
139
Id.
at 446.
140
Id.
141 Id.
Gingerich 39 that deliberation changes and transforms people’s opinions rather than simply distorting them, so there is no neutral baseline for deliberation to preserve. Specifically, a variety of motivational processes are at play in these instances of deliberative distortion. Different designs of deliberative frameworks will make different uses of these motivational structures and will impact the outcomes of political deliberation in different ways. Four mechanisms that might function in group deliberation are: communication and information availability, empathy/humanization, solidarity with group members and desire for acceptance, and motivation crowding.
142 Acting in a manner influence by these mechanisms might enhance one’s self-interest, as measured by a complete, transitive preference ordering. But it might not. So, since it affects these design levers, “deliberation may lead people to hold beliefs that are not in their best interest.” 143
1. Communication and Information Availability
The data described in the foregoing section does not, by itself, explain what impact communication has on how people shape their beliefs. One possibility is that views become homogenous because people have imperfect information about their decisions and they rely on the decisions of other people who face similar decisions to guess what the right decision is, and this “pervasive but fragile herd behavior” then generates informational cascades.
144
When such cascades occur, as the number of people expressing a belief or preferences increases, the number of uncommitted decision makers who treat this information as a good basis to make a decision
142
See Yochai Benkler, Law Policy and Cooperation (forthcoming) (manuscript at 10). These mechanisms are drawn from Benkler’s table of “Design Levers for Cooperation.”
143
Adam Przeworski, Deliberation and Ideological Domination , in D
ELIBERATIVE
D
EMOCRACY
140, 140-41 (Jon Elster ed., 1998). From the standpoint of system design, it is not at all clear in the abstract whether it is good for people to act contrary to their self interest—this is context dependent. Sometimes, public welfare (or some other measure of what is desirable) might be increased when certain individuals act in a fashion contrary to their preferences.
144
Sushil Bikhchandani, David Hirschleifer & Ivo Welch, Learning from the Behavior of
Others: Conformity, Fads and Informational Cascades , 12 J.
E
CON
.
P
ERSP
. 151, 168 (1998).
Gingerich 40 increases, creating a ongoing positive feedback effect.
145
The shift toward more extreme views might reflect the informational bias that people become more confident of their own beliefs when they know that other people share them.
146
These informational externalities can then distort people’s beliefs.
147
This is not, however, the whole story. It is also true, as David Salley notes, that “the act of communicating itself influences people’s preferences.” 148
Salley found that in experimental prisoner’s dilemma settings where communication between decision-makers should not influence the decisions that they reach on a self-interested rational actor model (where “talk is cheap”), the opportunity to communicate was the most important factor that led participants to act in fashion not guided by self-interest.
149
Salley suggests that this may be because “meaning arises from the mutual consideration of the utterer and the addressee, and this common identification may spill over into actions other than speaking and listening.” 150 Therefore, communication may induce people to change their preferences so that they are better aligned with the preferences of other people in decision-making groups. Communication does not simply provide people with information about which decisions are most likely to lead to outcomes they prefer, it also constitutes preferences. Deliberative institutions that promote communication among a particular group of people may lead those people to change their preferences so that they are more homogenous, even if they have perfect information. Whether
145
See S
UNSTEIN
, supra
146
See Schkade, Sunstein & Hastie, supra
147
See S UNSTEIN , supra
148
David Sally, Conversation and Cooperation in Social Dilemmas: A Meta-Analysis of
Experiments from 1958 to 1992 , 7 R
ATIONALITY
& S
OC
’
Y
58, 69 (1995).
149
Id. at 78.
150 Id. at 87.
Gingerich 41 such an institution generates correct outputs depends on whether the median or mean predeliberation beliefs of the group on the issues about which they deliberate are correct.
151
2. Solidarity
Michael Bacharach noted “a cardinal feature of group identification is to take the goals of the group to be your goals.” 152
When people are part of groups that make decisions, they might change their beliefs because of an intrinsic motivation to conform to the beliefs of the group if they define themselves by their group membership. Being part of the group may become more important to individuals than are their opinions about particular decisions that the group needs to make. When assigned to a group, people almost reflexively think of that group as better for them than an out-group, and do this because they are motivated to create a positive self-image.
153
This socially constituted self-identity can then affect a person’s individual identity as she tries to ensure that who she is matches who she is supposed to be as a group member.
154 Individuals may therefore attempt to conform to group identity when a group is deliberating about how to decide and when they have information about what deliberative position best represents the group identity.
155
If individuals have a view that they think many other people in their group strongly dislike, they may abandon rather than advance it in deliberative processes both to preserve their identities to the group (not wanting to lose the approbation of the group) and preserve their self-identities (not wanting to risk their internal beliefs that their individual
151
Knowing whether this is true requires independently evaluating the validity of the group’s opinions prior to deliberation.
152
M
ICHAEL
B
ACHARACH
, B
EYOND
I
NDIVIDUAL
C
HOICE
75 (2006).
153
See R OGER B ROWN , S OCIAL P SYCHOLOGY : T HE S ECOND E DITION 551 (1986)
[PARENTHETICAL].
154
See id.
; Miller McPherson, Lynn Smith-Lovin & James M. Cook, Birds of a Feather:
Homophily in Social Networks , 27 A
NNU
.
R
EV
.
S
OCIOL
. 415, # (2001) (arguing that people are more likely to cooperate and agree with people who are like themselves in some salient way).
155 See Schkade, Sunstein & Hastie, supra
Gingerich 42 identities are congruent with their social identities).
156
The flip side of this pursuit of conformity to group identity is the exclusion or shunning of non-group members.
157 This may, then, contribute to a disregard in group decision-making of alternative possibilities that might be seen as contrary to the identity of the group.
158
An (at least partial) explanation of many of the outcomes of the experiments described above is that people change their preferences to conform to what they think fellow group members want.
This solidarity effect is likely to affect individuals’ preferences and beliefs differently depending on how deliberative democratic institutions are designed. It is possible for governments, political parties, or other interest groups to manufacture identities that support their ideological positions.
159
If such identities simply produced cognitive distortions (that is, if they made people think that they wanted something different from what they really wanted) the threat of political infiltration might not be too great for deliberative systems—at least in theory, a system could be designed that would not allow for such cognitive distortions. But such identities do not appear to simply distort preferences. Rather, they appear to create or change them.
People are always part of groups, and the groups of which they are members will have a big role in determining what they like and value and believe.
160
Because people invariably form groups and connections with others who share salient features with themselves, no deliberative system could ever hope to preserve the pre-group preferences of individuals (if it is even possible for
156
See S UNSTEIN , supra
157 See Samuel Bowles & Herbert Gintis, Persistent Parochialism: Trust and Exclusion in Ethnic
Networks , 55 J.
E
CON
.
B
EHAV
.
& O
RG
. 1, 2 (2004) [PARENTHETICAL].
158
This seems particularly likely in deliberative democratic settings, since the organizations most frequently discussed as the locus of deliberative democracy (nation-states) tend to inculcate particularly strong (nationalistic) group identifications.
159
Susan C. Stokes, Pathologies of Deliberation , D
ELIBERATIVE
D
EMOCRACY
123, 134 (Jon
Elster ed., 1998).
160 See McPherson, Smith-Lovin & Cook, supra
Gingerich 43 people to really have preferences outside of groups). As such, deliberative institutions must cope with the inevitability that depending on the sorts of groups that they create, they will support the development of certain ideological values and opinions rather than others.
3. Empathy
Even in the absence of a solidarity effect arising from a strong group identity, deliberation may encourage participants to alter their beliefs through the motivational mechanism of empathy.
161 Iris Bohnet and Bruno Frey found that in a dictator game allowing for one-way identification in which a potential benefactor received some information about the potential grantee significantly increased gifts by the benefactor.
162
This one-way identification occurred in one-shot games, so cannot be explained as a reciprocity effect. Instead, it is the result of an increased concern with the well-being of the possible recipients of a gift arising from increased social closeness.
163 When people recognize the humanity of a counterpart, they are more likely to act in ways that increase the well-being of their counterpart.
164
This empathy/humanization effect is further evidence by neurological evidence. James
K. Rilling et al. conducted fMRI scans on subjects playing prisoner’s dilemma games. This experiment found that when subjects were introduced to a human partner before playing the game and were told that they were playing the game with a human partner, mutually cooperative social interactions were associated with activations of the anteroventral striatum, which
161
See Benkler, supra
note 142 (manuscript at 11); Sally,
supra
may create empathy among participants, including participants who are not members of the same in-groups).
162
Iris Bohnet & Bruno S. Frey, The Sound of Silence in Prisoner’s Dilemma and Dictator
Games , 38 J.
E
CON
.
B
EHAV
.
& O
RG
. 43, 53 (1999).
163
Id.
164 See Benkler, supra
note 142 (manuscript at 11-12).
Gingerich 44 neuroimaging and electrophysiological evidence has linked to reward processing.
165
In contrast, when subjects were told that they were playing the game with a computer, activations of striatal mechanisms related to reward were not observed.
166
Empathetic motivations appear to be salient in normative decision-making, too. Norman Frohlich and Joe A. Oppenheimer conducted a set of experiments asking subjects to endorse or reject particular principles of justice.
167
They found that when even high performing subjects were able to access information about the real effort and income of low performers, they were happy to endorse a floor-constraint principle of justice, requiring that the income of low performers not fall below a certain level, even when that principle would sometimes result in a significant redistribution of income.
168
These data indicate that democratic deliberators will be differentially motivated in different institutional settings, and are more likely to adopt political and normative principles that benefit other people with whom they can most easily empathize. Because spatial proximity plays an important role in encouraging empathetic responses, the geographic organization of deliberative structures may play an important role in determining which empathetic motivations communicative processes of deliberation trigger.
169
Again, this effect seems not simply to distort preferences but rather to change them: people express strong preferences for acting empathetically toward humanized others. So deciding how to design deliberative procedures
165
James K. Rilling, David A. Gutman, Thorsten R. Zeh, Giuseppe Pagnoni, Gregory S. Berns &
Clinton D. Kilts, A Neural Basis for Social Cooperation , 35 N EURON 395, 403 (2002)
[hereinafter Rilling et al.]; see also Alan G. Sanfey, James K. Rilling, Jessica A. Aronson, Leigh
E. Nystrom & Jonathan D. Cohen, The Neural Basis of Economic Decision-Making in the
Ultimatum Game , 300 S CIENCE 1755, 1755 (2003) [PARENTHETICAL].
166
Rilling et al., supra
167
N
ORMAN
F
ROHLICH
& J
OE
A.
O
PPENHEIMER
, C
HOOSING
J
USTICE
: A
N
E
XPERIMENTAL
A
PPROACH TO
E
THICAL
T
HEORY
(1992).
168
Id. at 181.
169 See McPherson, Smith-Lovin & Cook, supra
Gingerich 45 requires making a (political) decision about what sorts of empathy these institutions should encourage.
4. Motivation Crowding
Motivation crowding out occurs when the presence of one motivational lever diminishes or eliminates the importance of another motivational lever.
170
In certain situations, encouraging people to act in a certain way by using a particular motivational tool (say, economic punishment or reward) may have a perverse effect of diminishing other motivations for people to act in the desired manner.
171
This suggests that the design of deliberative democratic institutions may shape deliberators preferences by causing certain motivations to trade-off with other motivations.
For instance, Bruno S. Frey and Reto Jegen found that laws that suggest that citizens should be trusted enhance civic virtue while laws that imply a distrust of citizens decrease civic virtue and make citizens less likely to support the law.
172 Specifically, they found that in Swiss cantons that are pure direct democracies, tax morale (an instantiation of civil virtue) is substantially higher than it is in Swiss cantons that are pure representative democracies.
173
In the context of Swiss tax morale, laws that seek to discipline citizens or that reduce direct political control of a canton’s laws by its citizens crowd out intrinsic motivations to pay taxes.
174
This is another
170
See Benkler, supra
note 142 (manuscript at 15-16).
171
See, e.g.
, Ernst Fehr & Bettina Rockenbach, Detrimental Effects of Sanctions on Human
Altruism , 422 N
ATURE
137, # (2003) (finding that in investment games played in a laboratory setting, altruistically motivated sanctions to benefit the group increased cooperative behavior but sanctions imposed to enforce an unfair distribution of resources decreased subjects’ motivation to cooperate).
172
Bruno S. Frey & Reto Jegen, Motivation Crowding Theory , 15 J.
E
CON
.
S
URVS
. 589, 604
(2001).
173
Id. at 605.
174
At first glance, it may seem that it would be desirable for legal structures to always promote civic virtue, and therefore that it would be simple to stipulate that deliberative democratic institutions should always be designed to do so, but this is far from clear. For one thing, it may not be the case that people should always be encouraged to contribute to the overall welfare of a
Gingerich 46 motivational lever that can change individuals’ political preferences or beliefs that will have different effects in different systems of democratic deliberation.
C. Framing Shapes the Outcomes of Deliberation
The motivational levers that help to explain how preferences and beliefs are changed by participation in group decision-making processes suggest that how democratic deliberation is institutionalized and framed will determine which motivational levers deliberation pulls, which in turn will play a significant role in determining the outcomes of democratic deliberation. As
Tony Honoré recognized, “[a]ll law is the law of a group of individuals or of groups made up of individuals.” 175
What law is depends on the groups by and for which law is made. Many preferences that play a role in democratic deliberation are “not fixed and stable but are instead adaptive to a wide range of factors—including the context in which the preference is expressed, the existing legal rules, past consumption choices, and culture in general.” 176 Many different factors will be impacted by how deliberative democracies are structured. Do people have political debates with other citizens in their neighborhoods? Do people discuss politics on the
Internet? Does citizen deliberation take place in a formalized setting, as in Fishkin and
Ackerman’s Deliberation Day? Is deliberation closely connected to authoritative decisionmaking? Are there spending limits on campaign advertisements in elections? Is political representation based on geography or on something else? Are communities structured so that state rather than of some other entity (for instance, the world). Additionally, to the extent that civic virtue is associated with purely democratic political structures, encouraging civic virtue may require abandoning institutional structures designed to preserve political equality (like judicial review of government actions), which could undermine democratic decision making and therefore civic virtue in the long run.
175
T ONY H ONORÉ , M AKING L AW B IND : E SSAYS L EGAL AND P HILOSOPHICAL 33 (1987).
176 Sunstein, supra note 2, at 197.
Gingerich 47 like-minded individuals can form politically influential enclaves? Are individuals’ self-identities strongly connected to the identity of the deliberating group?
1. Geography and Scope
The outcomes of democratic deliberation are, to some extent, determined by decisions about the geographic arrangements of deliberative institutions. Where national or state borders are drawn plays an important role, to the extent that democratic deliberation is an enterprise carried out by geographically bounded nation-states. Deciding how to count votes in elections is a related question. Questions of scope also matter a great deal, and are closely connected to the problems of geography: how many people get to deliberate? One of the basic issues of scope is that where the boundaries of citizenship lie will determine who participates in democratic deliberation, which will, in turn, determine what interests and opinions are advanced in deliberation. Another issue is that size of deliberative groups will itself determine, in part, what interests are represented in deliberation, which is particularly important in the context of deliberation by the people’s representatives or proxies. (A small jury will likely leave some important opinions and interests unrepresented
177
; at the other extreme, the Israeli Knesset may provide for representation of too many preferences and opinions to effectively govern.
178
)
Fishkin and Ackerman’s Deliberation Day is an example of how geographic constraints can impact deliberation. Fishkin and Ackerman suggest that Deliberation Day participants at each school or community center where deliberations are conducted be drawn from a three- to
177
See B
ROWN
, supra
178
See, e.g.
, Israel Ministry of Foreign Affairs, FOCUS on Israel: The Knesset (Mar. 1, 1999), http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/3/FOCUS+on+Israel-
+The+Knesset.htm [PARENTHETICAL].
Gingerich 48 five-mile area.
179
This geographic structure may determine the views that are presented during and adopted as a result of deliberation. Schkade et al.’s experiment suggests that these are background system design factors that might play important roles in determining what outcomes deliberation generates. They suggest that if they had mixed people from Colorado Springs with people from Boulder before having them deliberate, the predeliberation median would probably have been predictive of the outcome—conservatives would have become more liberal and liberals more conservative.
180 They also note, however, that in such a scenario the positions of the conservative and liberal groups could become entrenched, and that the more extreme and divergent the pre-deliberation positions are, the more likely such entrenchment is.
181
Thus, it is possible that the order of deliberation could affect the likelihood of entrenched extremism. Since the sorted deliberation among liberals in Boulder and conservatives in Colorado Springs led participants to adopt more extreme views, they might be less willing to surrender such views if inter-group deliberation were to be conducted after intra-group deliberation. Furthermore, if group identity is particularly salient (if, for instance, it is announced or somehow made explicit) group polarization effects are likely to be more extreme.
182
Sorted political deliberation might also encourage entrenchment by facilitating the development of a political group identity, making compromise with political out-groups less likely. Enclave deliberation might therefore encourage the development of extreme, uncompromising political views. Practical applications of deliberative democracy always require eventually voting on outcomes, since consensus cannot
179
A
CKERMAN
& F
ISHKIN
, supra
note 1, at 70 (2004) (suggesting that this arrangement might
help ensure that conversations on Deliberation Day will not be dominated by highly educated, relatively wealthy white males).
180
Schkade, Sunstein & Hastie, supra
note 14, at 927 (finding that the predeliberation median is
the best predictor of the postdeliberation shift).
181
See id.
182 See id.
at 932.
Gingerich 49 always be reached.
183
Because of this, such entrenchment might support the adoption of political principles supported by a majority of citizens but significantly removed from the median political principles rather than the adoption of near-median political principles.
This possibility suggests that the political stakes of designing deliberative institutions are quite high. Deliberation is always embedded in local power structures rather than autonomous from them.
184
As long as mechanisms of deliberation are geographically structured, and as long as deliberation involves fewer than all of the members of a decision-making organization, the geographic effects of deliberation are likely to be unavoidable, since migration patterns tend to produce more homogenous subcultures, decreasing people’s exposure to diverse opinions.
185
2. How Deliberation Proceeds
Deliberative decisions will also, in part, be determined by the methods of deliberation that an organization uses to deliberate. Different methods will likely encourage participants to develop different political preferences or beliefs by appealing to different motivations. Because different methods of debating will allow certain arguments to be developed more fully and gain
183
See Elster, supra
184 Günter Schönleiter, Can Public Deliberation Democratise State Action?: Municipal Health
Councils and Local Democracy in Brazil , in P
OLITICISING
D
EMOCRACY
: T
HE
N
EW
L
OCAL
P OLITICS OF D EMOCRATISATION
, 75, 105 (eds. John Harriss, Kristian Stokke, and Olle Tönquist,
2004).
185
See Schkade, Sunstein & Hastie, supra
see also Alan Abramowitz, Brad
Alexander & Matthew Gunning, Incumbency, Redistricting, and the Decline of Competition in
U.S. House Races , 68 J.
P OL . 75, 86-87 (2006) (finding that in the past thirty years there has been a substantial increase in the partisan polarization of U.S. House districts and that there has been a substantial increase in partisan voting in House elections); McPherson, Smith-Lovin & Cook, supra
note 154, at 429-30 (noting that even seemingly trivial geographic factors can influence
the formation of homophilic ties).
Gingerich 50 wider audiences, and because different methods of aggregating or synthesizing political opinions will yield different results, democratic procedures have various distributional properties.
186
The existence of mass media, and the forms that it takes can have an important impact on a democratic society’s deliberative processes. Different structures of mass media will result in different structures of political communication and deliberation, which in turn help decide what laws or political actions people agree on. Thus, “[t]he BBC or the state-owned televisions throughout postwar Western European democracies . . . constituted the public spheres in different ways than did the commercial mass media that dominated the American public sphere.” 187
The political implications of different designs of media and communications systems arise, in part, from the necessity that in any system with a very large number of participants (and hence any system that has any potential to mitigate the ideological effects of geographic arrangements), arguments must in some way be filtered for “political relevance” and
“accreditation.” 188
A deliberative system must determine what concerns are “plausibly within the domain of political action and those that are not” and exclude non-political concerns from democratic deliberation.
189
Such systems must also, in some way, exclude subjects that lack credibility (like implausible conspiracy theories). A variety of institutional actors help to provide accreditation, including professional norms for journalists, political parties, academia, the civil service, large corporations, and nongovernment organizations.
190
These filtering functions are necessary for any large organization that conducts democratic deliberation because participants have limited resources of time and attention to devote to deliberation, and it is impossible for
186
See Thomas Christiano, Social Choice and Democracy , in T HE I DEA OF D EMOCRACY , supra
187
Y
OCHAI
B
ENKLER
, T
HE
W
EALTH OF
N
ETWORKS
181-82 (2006).
188
See id.
at 183.
189
Id.
190 See id. at 183-84.
Gingerich 51 every individual to evaluate every single argument or claim made by every other individual.
191
System design decisions about who performs the filtering and how it is performed will play a role in shaping the political debates that a society has and determining what voices will be heard in the debate. The BBC is not inherently more democratic than American commercial television broadcasting, nor vice-versa, but the two systems privilege different voices, and shape discussions of political questions differently.
It is possible that systems could be designed to allow for filtering institutions that are more participatory than mass media. Benkler has argued that the Internet provides such a system, in which individual groups focus on ideas that interest them in specialized online communities and then pass the best and most relevant ideas on to larger audiences through nodes that connect to larger, less specialized audiences.
192
However, while the Internet may restructure political deliberation to give a larger number of individuals a larger role in shaping the public agenda, as Benkler argues, such a restructuring could take on a variety of forms, each with distinct political implications. The following examples are purely hypothetical, but show what the political stakes might be. First, image a network system in which electronic communication is, because of regulations or because of the physical infrastructure of the network, very cheap when done locally (i.e. within a particular geographic neighborhood) and very expensive or
191
The absence of such filtering would be just as ideologically colored as its presence, since the absence of filtering mechanisms would necessitate a random selection of the arguments that an individual with limited time and attention is able to listen to, which would benefit political interests that make claims that are regarded as irrelevant or non-credible that would normally be removed from large scale deliberation by filtering mechanisms. This might also simply benefit speakers who happen to be charismatic. See A
RTHUR
L
UPIA AND
M
ATHEW
D.
M
C
C
UBBINS
, T
HE
D EMOCRATIC D ILEMMA : C AN C ITIZENS L EARN W HAT T HEY N EED TO K NOW ? 62 (1998) (“A person’s ability to persuade depends on how he or she is perceived by others.”).
192
See B
ENKLER
, supra
note 187, at 232, 242, 260. This argument seems consistent with
Sunstein’s argument that enclave deliberation can improve the overall argument pool, if enclave deliberation is connected to broader, more heterogeneous discussions. See C ASS R.
S UNSTEIN ,
R
EPUBLIC
.
COM
2.0, at 77-80 (2007).
Gingerich 52 impossible when done nationally or globally. Compared to a system in which communication with people all over the world is just as easy as communication within a neighborhood, different interest groups would emerge to filter for relevance and accreditation. It might be easier for groups concerned with physical infrastructure to grab media attention, since it might be easier to pull together a group of people who share the same physical environment even if it is not possible (say, because of their work schedules) or organize them on the streets or in parks. And urban interests might better be able to develop and vet ideas than would be rural interests. Local solidarity effects on motivation would play a larger role in shaping preferences in the localized network, while particular topical interests would be more likely to generate solidarity effects in the global network. Second, imagine a network system in which communication was conducted aurally. Compared with a system in which most communication was visual, the aural network system might generate stronger empathy effects among participants in deliberation (by humanizing the other participants) and it might require stronger filtering efforts, since people typically read more quickly than they listen. Third, imagine a system in which accreditation is performed primarily by a single node (a search engine). Imagine that, on the model of the BBC, this single node is state owned or state sponsored (say, the Federal Government nationalized
Google), and that therefore democratic controls exist on how the search engine functions and its operations are not driven by profit motives. Compared to the extant system of the Internet as described by Benkler, such a system might give fewer individuals a direct role in filtering arguments for inclusion in a public debate, but it might also be less market driven (maybe the single node would adopt a system making it easier for web pages produced by educational or non-profit organizations to pass through the filters of relevance and accreditation).
Gingerich 53
In any case, a variety of network structures could increase participation in filtering, and could do so in a number of ways, each of which would have political implications. A network can never decide solely by itself how it should be structured, because networks always exist against a backdrop of external conditions including markets, technologies, and laws and regulations. There is not a single democratic method of structuring deliberation, since different institutional structures will motivate people to develop and subscribe to different political arguments and ideas.
3. Deliberation Daze
Two hypothetical constructions of a Deliberation Day demonstrate how different deliberative systems might, by way of their institutional design, generate different political outcomes.
193
Both of the following hypotheticals are modeled on Ackerman and Fishkin’s
Deliberation Day. Imagine that these hypothetical deliberation days are held in conjunction with elections to an American state legislature. On Deliberation Monday, shortly before the election, citizens of the American state of Ames gather in small groups at neighborhood schools and community centers. Participation is mandatory, and there is a substantial tax penalty imposed on no-shows. No deliberation center has more than a few hundred participants, and after participants arrive at the schools, they are divided into smaller, ten to twelve person, geographic groups, so that citizens deliberate with their (geographically) closest neighbors. There are no moderators, and no set limits on the topics for deliberation. After deliberating for four hours, each small group issues a consensus report on the issue that they think is most important for the
193
This is not to say that Deliberation Day is a necessary element of any system that claims to effectuate democratic deliberation, but simply an example of how structuring a particular institution in the deliberative system could have ideological repercussions. However, the decision whether or not to have a Deliberation Day is itself an element of deciding how to design a deliberative system, so to the extent that decisions about this particular institution are ideologically colored, the broader system may also be so colored.
Gingerich 54 upcoming election. After the reports are issued, there is another four hours of deliberation as a large group (in a school cafeteria or gymnasium), after which the large group chooses the three political issues that it thinks are most important and decides, roughly, what its positions are on these issues. The group selects a reporter who writes a brief, formal statement describing the issues that the group thinks are most important, and what the group thinks should be done about the issues (e.g., “the gas tax should be raised to 10%”). Deliberation completed, the formal statement is published online, transmitted to the local paper, and sent to the candidates for the
Ames Legislature, who can then take positions on the issues and recommendations of the deliberative groups before the election.
In contrast, on Deliberation Sunday citizens of Ames who wish to deliberate go to a website set up for their state house district, where a number of chat rooms exist dedicated to a set of issues drawn from lists prepared by all of the candidates on the ballot for the Ames House of
Representatives and the Ames Senate as well as any topic that at least thirty citizens of a given house district request to be included. There is no requirement that citizens participate, and no financial incentive or disincentive for them to do so. In advance of Deliberation Sunday, a bureaucratic agency conducts research on every topic included on each website and prepares short briefings on each issue, which are distributed to participants to read before Deliberation
Sunday. Each participant can choose to participate in one discussion, and after choosing a topic about which she wishes to deliberate, is randomly assigned to a chat room with no more than 30 participants. Each group elects a foreperson, who is able to moderate comments in the chat room, and a reporter who, after four hours of deliberation, prepares a brief statement on the issue the group discussed and posts it on a deliberation blog for every deliberator from the Ames
Gingerich 55
House district to view. All of the deliberators for the district can then post comments on any issue they please, and the reporter who prepared each entry on the blog moderates the comments.
It seems likely that even if exactly the same people participated in Deliberation Monday and Deliberation Sunday, the results would likely differ, perhaps particularly on questions of how to use scarce resources and other tradeoff questions. I suspect that Sunstein and Fishkin and
Ackerman would agree that these two designs would yield substantially different outcomes. It is by appealing to differences like those between Sunday and Monday that Sunstein and Fishkin explain how the deliberative polls that Fishkin has conduced avoid the polarization effect detected by Sunstein.
194
That Fishkin and Sunstein would agree that these two procedures would generate very different outcomes might alone be sufficient to show that there is no neutral point from which to deliberate without reference to the motivational levers that I have discussed.
However, I suspect that Fishkin might argue that one design is more neutral than the other and that they differ because one achieves the goal of deliberative neutrality less well than the other.
It may be that the best response to such an argument, albeit a rather impressionistic response, is that Sunday and Monday look quite similar, and both designs appear to embody many of the same values. It would be difficult at best to formulate neutral standards that would enable
Fishkin to determine that one is actually more neutral than the other.
195 Moreover, the fact that each design benefits some groups and hurts others makes it very difficult to think that it is possible for one design to be more neutral than the other. This impressionistic response to
194
Schkade, Sunstein & Hastie, supra
195
Fishkin might reply that both are ideologically tainted, so a different design altogether is needed, but this strikes me as an unsatisfactory reply because non-ideal theory is already in the business of picking between imperfect alternatives. If such a theory cannot provide practical answers that let deliberators know which system is better but instead only describes an ideal system without telling them how close they are to that ideal, the theory has effectively ceased to be a non-ideal theory.
Gingerich 56
Fishkin is not a knockdown, killer argument. It is certainly possible that someone could formulate neutral principles that show Sunday to be more neutral than Monday or vice-versa or could design some other Pareto-optimal Deliberation Day that benefited every group and did not hurt any group, but these possibilities strike me as highly unlikely.
An additional response to Fishkin is that the presence of motivational levers that the design of deliberative systems affects undermines the possibility of developing principles that allow theorists to determine that one deliberative design is more neutral than another. On
Monday, we might expect that geographical solidarity is likely to play a big role and that individuals’ political decision are likely to be motivated in part by empathy for their neighbors.
196
The tax penalty for non-participation might crowd out civic virtue motivations to see the deliberative process as legitimate, which might make participants less committed to the deliberative endeavor but might also increase critical self-awareness of how the deliberative process might replicate the bias of participants or of the dominant political system. On Sunday, deliberators might be more strongly motivated by feelings of solidarity with people who share their interests and, because the means of deliberation do not provide for seeing other people in person, might be less motivated by empathy.
197
Substantial communication among a small group on single issues might help build agreement about what the solutions to particular problems should be, but less agreement than on Monday about the relative priority of different political problems.
198
Another important difference between Monday and Sunday, perhaps even more
196
See McPherson, Smith-Lovin, & Cook, supra
197
It seems likely that these two designs will impact solidarity and empathy in very different ways and to very different degrees. See infra
198
Another possibility is that certain religious communities would be less likely to participate on
Sunday than on Monday, which would have ideological effects on the outcomes of deliberation provided that the group of religious non-participants had political beliefs that differ significantly from the political views of the deliberating community as a whole.
Gingerich 57 important, is the presence of a moderator on Sunday and the limitation of the discussion on
Sunday to a single, pre-determined issue.
199 On Sunday, deliberators might become committed to a particular issue about which they have spent time deliberating, and may be less willing to trade-off this issue with other issues.
200
Further suppose that in Ames, there are two main ideological factions; call them the
Evens and the Odds. The Evens think that the basis of a strong community is having clean and orderly streets and ensuring that there are lots of neighborhoods with tight knit communities.
The Odds, on the other hand, think that the basis of a strong community is home ownership, and they are very worried about deceptive mortgage lending. If you are an Even ideologue who cares a great deal about neighborhoods having clean streets, you should prefer the structure of
Deliberation Monday, while if you are an Odd ideologue who cares about the technical intricacies of a plan to regulate mortgage lenders, you should prefer Deliberation Sunday.
Suppose there is also a third, very small ideological faction; call them the Primes. The Primes consist of thirty scientists in Ames City who have been studying a near extinct Paraguayan insect and have come to believe that there is some chance that this insect’s genes hold the key to curing malaria. The Primes think that preserving the habitat of the Paraguayan insect is the most important global political issue, and think that all local considerations pale in comparison, and
199 As I have set up the scenario, it is tricky to parse out what precise aspects of the design cause the differences between Monday and Sunday. I have set up the scenario in this way in part to demonstrate how many design features confound the possibility of neutrality and in part because the non-motivational differences I have incorporated seem, to me, to magnify the salience of the motivational differences. (The salience of solidarity can be magnified when a group is able to coalesce around a single issue and develop more homogenous views because, in part, of the presence of a moderator.) The designs could be modified to isolate differences between Sunday and Monday, which could allow a more precise determination of what causes the different designs to generate different outcomes. (For instance, Sunday could be given the same design as
Monday, except for the geographical approach to grouping.)
200 See Whyte, supra
Gingerich 58 they want the State of Ames to do everything possible to pressure the Paraguayan government to save the insect’s habitat. The Primes will certainly prefer Deliberation Sunday to Deliberation
Monday, since it will give their esoteric but possibly quite important cause a better change of garnering public attention. In any case, the issues that are emphasized in the media and in popular discussion after Deliberation Monday are likely to differ from those emphasized after
Deliberation Sunday, no matter how much work is done to ensure that the institutions set up for deliberation are politically neutral.
201 This presence of politics in institutional design questions about democratic deliberation has important repercussions for democratic theory.
202
IV.
I
MPLICATIONS FOR
D
EMOCRATIC
T
HEORY
Consequentialist deliberative democracy theorists tend to assume that the conditions of fairness are possible in modern society.
203
If democratic deliberation works correctly, its outcomes should reflect a synthesis of the beliefs of the deliberators rather than the ideological
201 It is entirely possible that these two designs would have radically different effects on levels of empathy and solidarity. However, the effect might be much more pronounced when the group identity is generated through face-to-face contact with geographic neighbors than through online meetings with strangers. See supra
note 185. It is entirely possible that further empirical studies
would be needed to gather data that would show how solidarity would play out differently on
Sunday and Monday, but I think that this does not necessarily weaken my point. Interest groups, like the Evens and the Odds, could theoretically gather this data so that they could determine which design would best promote their ideological objectives. At the very least, it seems likely that the solidarity effect would be at least marginally better for the Evens on Monday than on
Sunday and for the Odds on Sunday than on Monday. Furthermore, whenever a salient group identity exists, some solidarity effect can be expected. See McPherson, Smith-Lovin, & Cook, supra
202
It is possible that, at some point, deliberative systems interactions with ideological systems become too complex to make accurate predictions about systems’ ideological effects. If it is too difficult to predict whom a particular design feature will benefit or burden, ideological interest groups may not care about the structure of deliberation. However, this possibility of excessive complexity (which I cannot discount) would cut against the goals of deliberative democracy theory, since it would suggest that the decisions generated by democratic deliberation are, at least in some fashion, no better than random political decisions.
203
See, e.g.
, Shapiro, supra
note 42, at 437 (“I will assume, however, that such conditions are
attainable in modern society, although I admit that such a proposition is far from self-evident.”).
Gingerich 59 predispositions, whether about certain issues or about how political institutions should work, of the system designers. Thus, deliberative democracy theorists identify principles to structure deliberative systems to ensure that they remain ideologically neutral. For example, Sunstein identifies four ways in which neutrality can be not objectionable: when it is a call for internal consistency, when it is a requirement that legal outcomes and the distribution of social costs and burdens be justified with public regarding arguments, when it imposes a requirement of impersonality or abstraction on decision-makers in certain contexts, and when it refers to a suitable baseline for determining the existence of selectivity and bias.
204
However, democratic deliberation is always “in danger” of distortion by political power, because it trucks in political power.
205
This means that certain deliberative set ups will likely have particular political consequences. I will argue in this section that deciding how the deliberation will proceed has important ideological and political ramifications and that neutrality is impossible to achieve in deliberative systems, both as they might be implemented in the real world and as they might be theoretically conceived. I will argue that Sunstein’s principles, for example, would not succeed in creating a neutral deliberative system, because even within the constraints for deliberation that he specifies, ideology can still predetermine deliberative outcomes. I will first argue in IV-A that democratic deliberation cannot be neutral in a world that roughly resembles the status quo, and I will then extend the argument in IV-B to more theoretical accounts of democratic deliberation.
206
A. Real World Democratic Deliberation Does Not Generate Ideologically Neutral Outputs
204
S UNSTEIN , supra
205
Richardson, supra
note 65 (manuscript at 7, on file with author).
206
My argument is not, of course, that enabling citizens to deliberate is a bad idea, only to suggest that simply because a law is the result of democratic deliberation does not, by itself, provide any normative reason to treat that law as a law that should be followed.
Gingerich 60
My argument that democratic deliberation cannot avoid ideological infiltration as it might be practiced in the real world only requires showing that as it is practiced, deliberation does distort preferences, not that this distortion is inevitable or could not be corrected in an abstract theory.
207
It is only necessary to show for this argument that given the substantive background conditions of society, what deliberation does and how it works have important political implications. Inequalities of wealth, power, and education are so vast in contemporary American and global society that it would be ludicrous to suggest that democratic deliberation could proceed in a manner that provided fair access to all participants without vast, systemic changes.
208
In order to generate normative reasons that a law has authority, democratic deliberation must be supposed to give the right answer to political questions. But the impact of education and socio-economic status on the ability to deliberate is immense, and political participation in the modern world invariably depends upon the possession of resources.
209
Because of the important role that these factors play in deliberating about policy and principles, the outcome of any democratic deliberation given the conditions of society today would likely be far different than the outcome of any deliberation in which all of the participants had equal
207
The best arguments about deliberation accept that the political status quo is far from what is needed to generate legitimate political outcomes. My argument in this section should, therefore, be read primarily as laying the ground for my argument in Section IV-B. I think that my argument in IV-A does, however, cut against certain naïve constitutional theories that maintain that a law is legitimate if it is passed in accordance with the procedures specified in the
American constitution, a position which, while uncommon in academic writing on deliberative democracy, is not entirely absent from academic discourse on other topics and is not at all absent from the popular media.
208
See, e.g.
, T HE E CONOMIST , P OCKET W ORLD IN F IGURES passim (2009) [PARENTHETICAL].
209
See Jack Knight and James Johnson, What Sort of Political Equality Does Deliberative
Democracy Require?
, in D
ELIBERATIVE
D
EMOCRACY
: E
SSAYS ON
R
EASON AND
P
OLITICS
, supra
note 12, at 279, 306 [PARENTHETICAL]; Aileen Kavanagh,
Participation and Judicial
Review: A Reply to Jeremy Waldron , 22 L.
& P
HIL
. 451, 480 (2003) [PARENTHETICAL].
Gingerich 61 access to education, to wealth or free time, to charisma, and to other resources to enable them to persuade other deliberators.
210
Perhaps democratic deliberation could provide normative force to laws by simply avoiding extremism. Gutmann and Thompson suggest that democrats should seek to avoid processes that promote extremism.
211
Similarly Christopher McMahon argues that democratic values should foster debates that reduce differences of opinion.
212
However, deliberative systems that simply spit out the median political view of the status quo do not seem any more likely to generate reasons that a law is authoritative. It would be a mistake to assume that the status quo is in any way neutral simply because it is the status quo.
213
The status quo is a baseline that is historically contingent, and just like any other baseline it must be justified.
214
A deliberative system that simply shifts all political views toward the center does not provide any reason to treat its outcomes as correct unless there is some independent reason to believe that the present center has at least roughly the best answers to political questions. Ironically, Gutmann and Thompson’s view would require such a dramatic reform of the existing procedural system in order for its preconditions of fairness to hold that it would itself be “extreme” compared to most
210
An additional problem is ensuring not only that everyone has equal access to the resources necessary to enable successful participation in political deliberation, but to ensure that everyone actually participates. If many people are not participating, it might be because the ground rules for deliberation intentionally or inadvertently exclude them, or because they disagree with the ground rules. So, as Roberto Gargarella suggests, the problem of deliberative institutions securing “full representation” affects the impartiality of political decisions. See Gargarella, supra
note 73, at 274 (“[W]e need to know who deliberates, and we should be worried if most
people are kept at the margin of political deliberation.”).
211 G
UTMANN
& T
HOMPSON
, W
HY
D
ELIBERATIVE
D
EMOCRACY
?, supra
212
Christopher McMahon, Autonomy and Authority , 16 P
HIL
.
& P
UB
.
A
FF
. 303, 328 (1987).
213
Social psychologists have, however, identified a general tendency to rationalize the status quo and treat it as good, fair, and rational, even in the absence of good reasons to do so. See, e.g.
,
Aaron C. Kay et al., Panglossian Ideology in the Service of System Justification: How
Complementary Stereotypes Help Us to Rationalize Inequality , 39 A
DVANCES
E
XPERIMENTAL
S OC .
P SYCHOL . 305, # (2007) [PARENTHETICAL].
214 S
UNSTEIN
, supra
Gingerich 62 extant beliefs about deliberation in the North American status quo.
215
Any attempt to find normative force by moderating political beliefs therefore seems suspect.
Furthermore, the empirical realities recited above in Section III appear to necessarily be at work in any system of deliberation that does not assume that deliberative institutions would transform the preferences, beliefs and attitudes of deliberators. It seems reasonable that theories of democratic deliberation should accept extant knowledge about practical reasoning and political motivation rather than simply assuming that participants in deliberation have normatively desirable characteristics and beliefs.
216
To the extent that this background knowledge about political motivations is accepted, the effects of communication, solidarity, empathy, motivation crowding, and the informational effects of deliberative processes will result in deliberative outcomes with an ideological tilt. That said, it is possible that democratic deliberation could be at least theoretically (if not practically) structured to be ideologically neutral with respect to its outcomes, and I will now turn to the question of whether such a theoretical account of deliberative neutrality is plausible.
B. Deliberative Democracy Is Always Distorted by Ideology
Ideological considerations play a significant role in determining how societies design deliberative institutions. Different institutional structures encourage participants in deliberation to develop different preferences and beliefs than do other structures. In Ames, the Odds, the
Evens, and the Primes would design different institutions for deliberation because of different
215 Frederick Schauer points out that for what Gutmann and Thompson see as legitimate political deliberation to occur, we would probably need a much better substantive political environment that we have now, and to the extent that we had a substantive better political environment, the need for legitimate public deliberation would, presumably, be greatly reduced. Frederick
Schauer, Talking as a Decision Procedure , in D
ELIBERATIVE
P
OLITICS
: E
SSAYS ON
D
EMOCRACY
AND
D
ISAGREEMENT
, supra
216
James Johnson, Arguing for Deliberation: Some Skeptical Considerations , in D ELIBERATIVE
D
EMOCRACY
161, 174 (Jon Elster ed., 1998).
Gingerich 63 ideological commitments. The ideological commitments that determine how to shape deliberative institutions would not, however, need to concern discrete political questions—they could also be ideological commitments to principles regarding how government institutions should function, including deontological commitments to certain deliberative structures, or they could be principles about efficacy and the cost of governing.
217
Choosing one institutional design rather than another will reflect certain ideological considerations rather than others. If people had permanently fixed preferences and political beliefs, this would not matter much to theoretical accounts of democratic deliberation, because a system could be designed, at least in theory, in which the deliberative process would not distort any preferences. But this is impossible. As I argue in Section III-B of this Paper, preferences and political opinions are endogenous, and are constituted in part by political institutions. Different systems will motivate people in different ways, and therefore will encourage people to develop different political commitments. Such constitutive effects are inevitable, and there is no undistorted baseline of preferences or beliefs that democratic deliberation could preserve. Of course, institutional designs could be developed to reduce or eliminate certain motivational forces. For instance, dispersing power among deliberative bodies could reduce group polarization, decreasing the salience of solidarity and empathy mechanisms.
218 However, whether this would be good or bad depends on one’s political goals. Reducing the salience of some motivational mechanisms will simply increase the salience of other motivational mechanisms. So a fundamental dilemma for
217
I am not, however, attacking theories that justify democratic deliberation on deontological grounds, like Jeremy Waldron’s theory. I am only attacking consequentialist accounts of deliberative democracy that argue that democratic deliberation gives moral force to laws because it generates good outcomes.
218 See C
OLIN
F
ARRELLY
, J
USTICE
, D
EMOCRACY AND
R
EASONABLE
A
GREEMENT
213 (2007).
Gingerich 64 deliberative democracy is that it must presuppose certain substantive political principles in order to resolve basic institutional design questions adequately.
This severely threatens democratic deliberation’s ability to generate normative reasons to treat a law as legitimate, because if someone disagrees with the political commitments that underlie the institutional design of deliberation, then she does not have a reason to treat the outcomes of deliberation as legitimate, and this suggests that reasons to treat the outcome of deliberation as authoritative must precede deliberation rather than arise out of it. This is a notable problem because any theory of deliberative democracy that adequately copes with the problems of inequality present in real world deliberation must develop a rather thorough baseline account of the conditions necessary for democratic deliberation to proceed. Determining which politically relevant capacities are beyond individual control will depend on society’s understanding of personal relationships, which are controversial subjects themselves.
219 This means that there will be much room for disagreement with the fundamental principles structuring deliberation, as these principles will have very wide ranging effects.
Perhaps, in theory, it would be possible to remedy these pathologies of deliberation by justifying a certain baseline procedural rule for deliberation and then following that baseline procedure to generate outcomes that have legitimacy because they are the product of democratic deliberation. For instance, Sunstein argues that while in a constitutional system “there are constitutional limits on what citizens may decide . . . [and] these limits are themselves set down in advance by the citizenry.” 220
However, my argument undermines this constitutionalizing move as well. Suppose that system designers decide that in order for legitimating democratic deliberation to take place, the government must provide free education from preschool through
219
See Knight & Johnson, supra
220 S
UNSTEIN
, supra
Gingerich 65 graduate school to anyone who wants it and must require that ever citizen complete at minimum two years of college or equivalent post-high school vocational training. If I think that providing so many resources to education fundamentally misallocates resources, I will not have a reason to agree with the outcomes of deliberation by virtue of their being the outcomes of democratic deliberation.
221
On the other hand, if I think that fair democratic deliberation is impossible unless the government offers free education through graduate school to any citizen who wants it,
I will not have a reason to treat as legitimate the outcomes of deliberation in any system that does not provide such educational opportunities, since I will think that not everyone has fair and equal opportunities to participate in the system. In fact, almost every political issue will have some implication for the ability of different individuals to participate in democratic deliberation.
222
Since baseline requirements for deliberation could be so substantial and could significantly affect decisions about a wide range of political issues, it is not plausible that everyone in a society could agree on basic ground rules for deliberation even if they could not agree on discrete political issues. Arguing that deliberation must be among equal citizens is, by itself, meaningless absent any specification of what it means for citizens to be equal. If anything, choosing ground rules should be harder than deciding about discrete, substantive political issues rather than easier.
A further difficulty with picking a baseline for deliberation before designing deliberative institutions with that baseline in mind is that “outside of institutional settings, the people cannot
221
Although I might think that such outcomes are legitimate for other reasons, unrelated to their being the outcomes of democratic deliberation.
222
A very partial list of laws that could differentially affect the ability of certain individuals to participate in democratic deliberation includes: regulation of communication networks, sexual harassment laws, anti-discrimination laws, laws regulating and/or guaranteeing health insurance, occupational safety laws, wage and hour laws, and landlord-tenant laws.
Gingerich 66 coherently be conceived of as thinking anything.” 223
There is no natural, pre-institutional method of determining what the popular will is, and thus no way to generate baseline principles for deliberative democracy without referring to external, objective political values. There cannot be democratic control of anything until there are democratic institutions.
224
Because of this inevitability, any claim that democratic deliberation provides normative force to a law by virtue of democratic ratification necessarily rests on more fundamental political principles that justify the mechanisms of democratic deliberation. Constitutional constraints cannot be the outcome of democratic deliberation alone. Deliberative democracy is required to bring forth fundamentally valid laws, but this can happen only when it is the outcome of a conceptually prior procedural event, itself framed by valid laws.
225
Any constitutional framework for deliberation cannot itself possibly be the outcome of the popular will.
226
As Knight and Johnson argue, “whatever form the actual mechanism for assessing effective participation takes, the requirements of political equality will themselves be fundamentally political questions.”
227
The empirical evidence shows that deliberation is never neutral: deciding whether to have a moderator, deciding how big the group should be, deciding how to select the group, deciding how debate should proceed (will materials be provided by some outside actor?), deciding how to group people for deliberation, deciding what background conditions are necessary for equality, and deciding whether structures should be designed to increase or to decrease polarization are all
223
Richardson, supra
note 65 (manuscript at 13, on file with author) (arguing that aggregations
of preferences, like those generated in Fishkin’s deliberative polls, cannot be taken as the popular will because there are many different ways of aggregating a set of preferences, all yielding different results).
224
Richardson, supra
note 65 (manuscript at 12, on file with author).
225
See Frank I. Michelman, How Can the People Ever Make the Laws?: A Critique of
Deliberative Democracy , in D
ELIBERATIVE
D
EMOCRACY
: E
SSAYS ON
R
EASON AND
P
OLITICS
, supra
226
See Richardson, supra
227 Knight & Johnson, supra
Gingerich 67 difficult questions that cannot be resolved by deliberation. Maybe they could be resolved by deliberating within an acceptable procedural framework for deliberation (say, a constitutional convention) but then that framework would also need to be justified without reference to its democratic nature.
Perhaps Bruce Ackerman’s idea of constitutional moments offers a way out for deliberative democracy to create a basic structure on the basis of the popular will and then to allow for deliberation within that structure.
228 On this account, the popular will might emerge during moments of perturbation when the political beliefs of the people become clear, and through this process, political institutions might earn the authority to speak for the people.
229
There is a two-track lawmaking system, the lower track of which is designed for normal political decisions that are made in the absence of highly mobilized majority sentiment and the higher track of which imposes rigorous tests on political movements that can speak for the people and allow for considered judgments to be made by the people, rather than simply by the government.
230
The idea of constitutional moments, however, fails to overcome the problems of ideology. First, every political deliberation, even one that takes place with minimal formal
228
See B RUCE A CKERMAN , W E THE P EOPLE (1991). This appears to agree with Habermas’s idea of a reflexive and recursive legitimating legal procedure that is itself legitimated by a conceptually prior procedural event. See Habermas, Constitutional Democracy , supra
# (“[T]he allegedly paradoxical relation between democracy and the rule of law resolves itself in the dimension of historical time, provided one conceives the constitution as a project that makes the founding act into an ongoing process of constitution-making that continues across generations.”); Frank I. Michelman, Book Review, 93 J.
P
HIL
. 307, 308 (1996)
[PARENTHETICAL].
229
See 1 A CKERMAN , supra
230
See 2 A
CKERMAN
, supra
note 228, at 5. Habermas envisions a similar extra-institutional
circulation of public political discourse. See H
ABERMAS
, B
ETWEEN
F
ACTS AND
N
ORMS
, supra
note 5, at 408. The line between the two spheres is not, however, as sharp for Habermas as for
Ackerman. See Michelman, supra
Gingerich 68 structure, has certain baseline requirements. Background conditions of education, wealth, and social network memberships (carrying with them ability to leverage solidarity) shape the ability of different individuals to mobilize people (or resist mobilizations) and thus to participate in decision making on the higher of the two tracks described by Ackerman. Second, group polarization is likely even if equality and public reasoning requirements are somehow satisfied.
231
In fact, polarization seems particularly likely when ideological affinity forms the basis for political organization, as typically occurs in large-scale movements. Because of the likelihood of such polarization, even among citizens whose make conscientious efforts to achieve truth and understanding, institutional design questions about the extent to which deliberative structures should channel popular impulses into more heterogeneous deliberative bodies will retain significant ideological importance.
Third, and finally, deciding who counts as a participant is also a political question that precedes the possibility of moments of popular perturbation that provide ongoing legitimacy to government institutions. The ability to participate in political life in a meaningful way and to mobilize popular opinion may depend on acceding to the legitimacy of foundational laws before deliberation even has a chance to begin. For instance, on one reading of the history of Federal
Government interactions with Native Americans in the late nineteenth century, tribes were required to accede to the legitimacy of the American government and its institutions.
232
If they failed to accede to this authority, they were subjected to spatial isolation in the form of confinement to reservations. While a mere denial of citizenship might still allow a group of people to mobilize popular support to gain rights as citizens, spatial exclusion dramatically
231
S
UNSTEIN
, supra
232
This history is certainly contested, and I do not purport to offer a definitive historical account, only a plausible one in order to illustrate this point. I would like to thank Kyle Doyle for suggesting this example.
Gingerich 69 reduced the possibility of participating in broad, popular political deliberation for certain groups of Native Americans. Decisions about who is allowed to live where and who counts as a citizen can differentially influence the ability of interest groups to secure popular support for laws or legal reforms that they desire. Such decisions loom in the background of any popular mobilization that could spark constitutional moments, so ideological coloration cannot be avoided simply by claiming that largely informal political movements that crop up from time to time provide ongoing legitimacy to institutional mechanisms for day-to-day deliberation and political decision-making.
Furthermore, even if the system of democratic deliberation is just, or at least as just as it reasonably could be given the circumstances, this does not provide a reason to treat its results as having legal authority. Because deciding what sort of procedural system to set up must make an all things considered judgment about the outcomes it will generate (unless it is constrained by some prior procedural framework that was itself established by asking such an unconstrained question), it must account for every tendency that a deliberative system will have to produce one outcome rather than another, and accord it some weight in the decision about what procedural system to adopt. Because the procedural system adopted is based on political commitments, any normative claim it generates should only be thought of as a wide-scope ought, and members who adhere to the political values that created the system should be free, to use John Broome’s term, to put their reasoning in reverse, and reject the political premises that they relied on rather than accept an unpalatable outcome of their reasoning.
233
(If, for instance, they though a system of
233
See John Broome, Reasons , in R EASON AND V ALUE : T HEMES FROM THE M ORAL P HILOSOPHY
OF
J
OSEPH
R
AZ
28, # (R. Jay Wallace, Philip Pettit, Samuel Scheffler, & Michael Smith, eds.,
2004); see also J
AMES
B
OHMAN
, P
UBLIC
D
ELIBERATION
: P
LURALISM
, C
OMPLEXITY
,
AND
D EMOCRACY 238 (1996) (arguing that public deliberation must take place in a revisable institutional and interpretive framework in order to be legitimate).
Gingerich 70 deliberative democracy would work out very well when they set up its institutions but the system then decided that slavery is permissible.) As Raz points out, approving of a democratic institution does not mean acknowledging that every decision it makes is just.
234
This point goes further, too: if you think that a system of deliberation is neutral and really allows everyone to participate equally in a democratic decision making process, then the fact that democratic deliberation ratified a certain law might be a reason to treat that law as a wide scope normative requirement. But the empirical evidence makes it difficult to believe even this. The empirical evidence shows that there is no such thing as neutral deliberation: even if you could agree on the baseline requirements of equality for participation in deliberation, it is still necessary to decide procedural questions that cannot be decided simply by reference to equality.
For instance, are divided institutions desirable in order to discourage extremism? This depends on deciding if it is desirable to have extreme opinions, which does not necessarily have to do with equality.
235
Should deliberation take place at a local level? A national level? A global level? Again, in a world of perfect resource equality, the answer to this question would seem not to be dictated by principles of equality; some other political commitments will be needed to decide what scale deliberative democracy should take. As long as these decisions involve political commitments other than agreement to abide by the decisions made by fellow-citizens following fair procedure and playing equal roles, they cannot provide the basis for finding that a law has authority, since democratic deliberation can only provide such a reason if the decision it generates is uniquely fair. The empirical evidence demonstrates that it is possible because of framing or polarization effects that two different deliberative democratic procedures could
234
R
AZ
, supra
235
It might, however, have to do with equality depending on the substance of the extreme beliefs.
Gingerich 71 generate different outcomes even though both met all of the requirements of political equality and fairness and both adhered to the requirements of public reason.
236
The argument that choices about ideological structures are inevitably subject to ideological infiltration does not only undermine arguments that ratification by democratic deliberation generates normative reasons to treat law as authoritative, it also cuts against epistemic arguments for democratic deliberation and as wisdom-pooling arguments that democratic deliberation is desirable because it successfully synthesizes knowledge from a large number of people. Such theories say that democratic deliberation is good because it produces the right political outcomes. But the arguments that these theories rely on about the outcomes of democratic deliberation are wrong if deciding what sort of deliberative structures to create is an ideological decision. Choosing one framework for deliberation and democratic decision making rather than another will produce different outcomes. It cannot be the case that if Odd ideologues secure a deliberative framework like Deliberation Sunday which subsequently ratifies the Odd political agenda then a reason to accept Odd supported laws as true is thereby generated. This would not only bootstrap reasons into existence but bootstrap political truth into existence— simply by virtue of believing in the Odd ideology and securing an institutional framework favorable to that ideology, the Odds would be able to generate reasons that their political beliefs are true. Since ideological choices about political institutions result in certain outcomes rather than others, and possibly radically different outcomes, there is no single answer or even a single set of true political answers that deliberation can provide.
V.
C
ONCLUSION
236
Of course, anyone who thinks that reason is unitary might not think that this is possible. See, e.g.
, G.W.F.
H EGEL , P HENOMENOLOGY OF S PIRIT # (A.V. Miller, trans., 1977)
[PARENTHETICAL].
Gingerich 72
If people were really economically rational and their preference were not disturbed by feelings of empathy and solidarity, then it might make perfect sense to say that democratic deliberation can generate laws that are prima facie (or even all-things-considered) legitimate.
237
People would engage in deliberation which would solve any problems about limited access to information they might have, allow them to see how strong their preferences are compared to the preferences of other people, and agree to cut bargains with other people so as to produce Paretooptimal political outcomes. However, if people are influenced by various and idiosyncratic motivational structures like solidarity, empathy, and communication, it is much harder to believe that democratic deliberation necessarily produces legitimate laws.
238
People do not merely have their preferences distorted by deliberative structures; rather, while they remain themselves, they are “changed to the very marrow of [their] bones” by the process of deliberation.
239
As Johnson notes, “reasonable pluralism” should then be an outcome of, rather than a precondition for, democratic deliberation.
240
Nevertheless, the theoretic refusal to relax rational expectations assumptions has led to contorted theoretical models.
241
Given this understanding, it is better to see the justification for majority rule as resting on independent principles of justice.
242
However, Philip Soper raises the point that if our theory does not accord legitimacy to laws, this is a reason to try different theories because law so persistently claims to have authority
237 I say “might” both because the objectivist challenge would still obtain, and because it is not clear to me that the requirement of public reason is compatible with a view of people as economically rational actors.
238 That is, laws that we have a reason to believe to be legitimate by virtue of their democratic ratification.
239
J OHANN W OLFGANG G OETHE , I TALIAN J OURNEY 147 (W.H. Auden & Elizabeth Mayer, trans.,
1970).
240
Johnson, supra
241
B
RYAN
C
APLAN
, T
HE
M
YTH OF THE
R
ATIONAL
V
OTER
: W
HY
D
EMOCRACIES
C
HOOSE
B
AD
P OLICIES 207 (2007).
242 See, e.g.
, J
OHN
R
AWLS
, A T
HEORY OF
J
USTICE
, 313 (rev. ed. 1999) [PARENTHETICAL].
Gingerich 73 and the intuition that the law has authority is so strong.
243
One possibility is a social contract model of legitimacy rather than a democratic deliberation model. Paul J. Weithman notes that while the democratic deliberation model has recently become quiet popular in the academy, the social contract tradition is just as rooted in American history and just as viable.
244
Another alternative, perhaps more intellectually satisfying and certainly more responsive to inequities of the North American and global status quo, is to conceive of democracy as less confined to state institutions and claim that democracy consists in a constant critical questioning of empire and elite power.
245
On this account, democracy is critique, the democratic impulse calls into question every assertion of legal authority or legitimacy, and deliberative democracy is the constant, insistent instantiation of this critical consciousness.
243
Philip Soper, Legal Theory and the Claim of Authority , 18 P
HIL
.
& P
UB
.
A
FF
. 209, 237 (1989).
244
Paul J. Weithman, Contractualist Liberalism and Deliberative Democracy , 24 P HIL .
& P UB .
A
FF
. 314, 343 (1995).
245
See C
ORNEL
W
EST
, D
EMOCRACY
M
ATTERS
: W
INNING THE
F
IGHT
A
GAINST
I
MPERIALISM
, 16-
22 (2004) [PARENTHETICAL]; see also L YOTARD , supra
note 10, at 65-67 (suggesting that the
end of discussion is not consensus but “paralogy,” which is a sort of “inventor’s knowledge” that destabilizes and reinvents systemic, institutionalized knowledge); Habermas, Constitutional
Democracy , supra
note 5, at 774 (suggesting that a democratic constitution is a “tradition-
building project with a clearly marked beginning in time” and that later generations have the task of critically actualizing the norms laid out in the founding document).
