Often, people talk as if democratic elections bestowed a beneficent, mystical moral glow on decisions. Such an illusion may be useful, since the acquiescence of those who are outvoted is much preferable to a civil war. But what can actually be said for democracy is much more modest. The Book of Mormon gives a much more qualified recommendation for democracy:
Now it is not common that the voice of the people desireth anything contrary to that which is right; but it is common for the lesser part of the people to desire that which is not right; therefore this shall ye observe and make it your law—to do your business by the voice of the people. And if the time comes that the voice of the people doth choose iniquity, then is the time that the judgments of God will come upon you; yea, then is the time he will visit you with great destruction even as he has hitherto visited this land. Mosiah 29:26,27
In other words, most of the time, what the majority of the people would choose is reasonable, some of the time it isn’t. When what the majority of the people would choose is bad, you are in trouble.
John Stuart Mill rightly emphasizes the importance of personal freedom, even over political participation. In the 13th paragraph of the “Introductory” chapter, he writes:
No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.
When thinking of the virtues of democratic decision-making, it makes a big difference what kinds of decisions one is talking about. When it is possible to divvy up personal spheres and let individuals make many decisions, the need for collective decision-making can be reduced. Some kinds of collective decisions can be made by voluntary associations rather than by the whole polity.
When it comes to decisions that are made by the whole polity, spelling out the details of how what used to be called “natural law” will actually be enforced is certainly legitimate. As John Locke put it, people have a right to punish others for violence, theft, fraud and the like that it is better that they delegate to the state in order to avoid unending vendettas. But the right to do that enforcement preceded the state.
The hard philosophical issue in relation to democratic decision-making arises when going beyond the enforcement of the principles formerly known as “natural law” to talking about schemes for making things better overall that help some people at the expense of others. It seems too bad to disallow such schemes entirely–especially when many people can be benefitted greatly while only a few are hurt a little. But the warrant for state compulsion for the sake of such schemes is a bit shaky.
Where things become very clear is that state compulsion is never warranted for schemes that make some people better off and some worse off, but overall make things worse by a utilitarian test. I am arguing that such measures are not merely unwise, but immoral. Compelling someone to do something at the implicit threat of being thrown in jail or worse is a grave thing and is immoral and unethical to do for the sake of something that can’t even meet a utilitarian cost-benefit test that takes due account of the different meaning something has to a poor person as opposed to a rich person.
As things stand, the courts adjudicating the US constitutional system show too much deference to democratic decisions that use state compulsion to reduce overall utilitarian welfare. It may be objected that there is often a disagreement about the effect of a decision on overall utilitarian welfare. But when a good case can be made that a democratic decision, enforced implicitly at the point of a gun, makes people much worse off–even if they don’t realize that is so–then I think the courts should not be shy of saying so and disallowing that democratic decision. To do otherwise would be to attribute a magic to democratic decisions that they simply don’t have.
No way of making decisions is perfect. And of course judges, too, make mistakes. But since democracy has no magic that makes democratic decisions always correct, we should not be afraid of a constitutional system that sometimes has judges overrule democratic decisions if we find that it works well in practice.