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Direct Democracy, or perhaps just Democracy

(Revised 28 October 20181)

The enthusiastic involvement of voters in the same-sex marriage plebiscite of 2017 led many
people to ask whether such exercises might be carried out more often. And as night follows
day, the opponents of popular democracy came out in force to hose down any such
expectations. In the weeks following the result I counted three opinion pieces in the Fairfax
media either denouncing direct democracy altogether or insisting that it be only
“consultative”, allowing politicians to overrule any “incorrect” votes.

I was so moved by the factual errors and misrepresentations in these articles that I sat down
to catalogue them, and then began to wonder whether they might form the backbone of a
paper on the topic.

What is “democracy”?

At the outset it is worth pointing out that the common use of the word “democracy” to refer
to elective government is quite modern, dating back to 1798. Prior to that, the term
“democracy” was used – at least in elite circles - in a pejorative sense to depict anarchy and
chaos. We can see this usage in various speeches from the United States Constitutional
Convention of 1787 and the ensuing ratification debates:

All communities divide themselves into the few and the many. The first are the rich
and the well-born; the other the mass of the people ... turbulent and changing, they
seldom judge or determine right. Give therefore to the first class a distinct, permanent
share in the Government ... Nothing but a permanent body can check the imprudence
of democracy. (Alexander Hamilton, Speech to the Constitutional Convention, June
1787)

Between a balanced republic and a democracy, the difference is like that between
order and chaos. (John Marshall)

...democracies have ever been spectacles of turbulence and contention; have ever
been found incompatible with personal security or the rights of property; and have in
general been as short in their lives as they have been violent in their deaths. (James
Madison, Federalist No. 10)

Whatever we might think of democracy, it is clear that Hamilton, Madison and their
colleagues conceived of it as something to be avoided at all costs.

An important change in usage occurs in the 1790s, paradoxically as a result of Hamilton and
his Federalist Party attempting to smear the “Republican Party” of Jefferson and Madison2.

The Republicans contended that the Federalists harboured aristocratic attitudes and
that their policies placed too much power in the central government and tended to
benefit the affluent at the expense of the common man. Although the Federalists soon
branded Jefferson’s followers “Democratic-Republicans,” attempting to link them
1
Latest revisions listed at end
2
This was not the modern Republican Party but an earlier Republican Party which confusingly evolved into the
modern Democrats!
with the excesses of the French Revolution, the Republicans officially adopted the
derisive label in 1798.3

So, ten years after ratification of a deliberately non-democratic constitution (in the historical
sense), we see a political party appropriating the title “Democratic” safe in the knowledge
that there was no real threat of actual historical democracy.

This trick was not lost on politicians elsewhere. In the ensuing two centuries “democratic”
has been used to describe almost every form of regime. The “German Democratic Republic”
(the former East Germany) was in fact a police state. Likewise, to this day the brutal North
Korean dictatorship chooses to style itself “The Democratic People’s Republic of Korea”.

What about “representative” democracy?

One of the most common strategies for changing the meaning of the word “democracy” is to
prefix it with the word “representative” and then use it to describe elective government.

But what exactly does “representative” mean? And in what sense is elective government
representative?

The use of “representative” in this way is almost always a Semantic Fallacy. This type of
fallacy arises when a word which has a well-known meaning in one context (often a meaning
with a strong emotional value) is used in another context in which that meaning either does
not apply or cannot apply, or can be applied only by creating a tautology.

Let’s consider the various non-political meanings of “representative”.

First, there is statistical representativeness.

Statistical representativeness occurs when a sample is drawn from a population and the
sample is required to have the same proportions as that population for some parameters which
are regarded as important. For example, it may be thought important to have the same
proportions by age, or by sex, or by religion, or by income, or by weight, or by ethnic origin,
or educational qualifications, or by the presence of some gene, or by place or residence, or by
number of children, and so on, and so on.

If there is an indefinite number of factors for which the sample needs to be statistically
representative then the sample will need to be as large as the population. When applied to
elective government this would mean a legislature comprising all voters, or a form of direct
democracy.

More practically, if one wanted to approximate statistical representation on an indefinite


number of factors it would be better to choose “representatives” randomly, a form of
government known as “sortition”. The likelihood of each factor being chosen would be
proportional to its prevalence in the population.

Elected politicians are clearly not statistically representative of the population a whole. For a
start, they are all politicians! The very process of competitive election makes them

3
Encyclopedia Britannica, online edition, “Democratic-Republican Party”.

2
unrepresentative of the population as a whole, a process of “adverse selection” described by
Economics Nobel laureate James Buchanan4:

[S]uppose that a monopoly right is to be auctioned; whom will we predict to be the


highest bidder? Surely we can presume that the person who intends to exploit the
monopoly power most fully, the one for whom the expected profit is highest, will be
among the highest bidders for the franchise. In the same way, positions of political
power will tend to attract those persons who place higher values on the possession of
such power. These persons will tend to be the highest bidders in the allocation of
political offices. . . . Is there any presumption that political rent seeking will
ultimately allocate offices to the ‘best’ persons? Is there not the overwhelming
presumption that offices will be secured by those who value power most highly and
who seek to use such power of discretion in the furtherance of their personal projects,
be these moral or otherwise? Genuine public-interest motivations may exist and may
even be widespread, but are these motivations sufficiently passionate to stimulate
people to fight for political office, to compete with those whose passions include the
desire to wield power over others?

The tendency of elective government is to adversely select aggressively narcissistic,


machiavellian individuals with a strong desire for exercising power over others.5

Elected politicians are statistically unrepresentative in all sorts of other ways as well. They
tend, for example, to be more gregarious than the general population. But it is not necessary
to go through all the ways in which they are statistically unrepresentative. The mere fact that
they are elected politicians destroys the possibility of statistical representation.

Secondly, “representation” may take the meaning of individual agency. For example, a
barrister “represents” his or her client in court the following sense: we expect that the
barrister will put forward the same arguments that the client would, assuming that the client
had sufficient legal skill and was sufficiently articulate. The barrister acts as if her or she
were the client.

But that form of “representation” cannot possibly apply in politics. Why? Because in politics
there is more than one client, and the wishes of the clients clearly conflict. Which “client” is
the political “representative” going to represent?

The absurdity of political representation of this type is vividly illustrated by imagining


yourself arriving at court one morning to find that your barrister was “representing” not only
you but your opponent also, and the state, and anyone else who might claim an interest in
your case.

In such cases, the agent is not acting as a representative but as an arbiter.

Thirdly, there is the concept of “representation” as delegation. An individual or a group may


appoint an agent to act on their behalf. Typically they will set out the terms of the agency.
They will give the agent certain latitude but require other matters to be referred back to
themselves for direct decision.

4
James Buchanan and Geoffrey Brennan, “The Reason of Rules”, Cambridge University Press, 1985, p64
5
The effect of direct democracy in eliminating adverse selection is touched upon later.

3
Once again – in Australia as in most other countries – that meaning of “representation”
cannot apply because the People have never been asked whether they wish the politicians to
act on their behalf. They have never been given a choice between direct democracy and
elective government.

In Australia and in most other countries the People have simply been told that the politicians
will enjoy a monopoly on legislative and executive power, and asked which team of
politicians they would prefer to exercise that monopoly.

Had Australians ever been given an opportunity to choose between direct democracy and
elective government, then one might say that those who chose elective government had
chosen to be “represented”, had chosen to delegate their decision-making to agents. But
politicians have always been very, very, very careful never to offer that choice. And even if
they had offered it sometime in the past, it would apply only to those who voted on it at the
time and not to their distant descendants.6

So where does that leave us?

We can say that elective government is “representative” only if we introduce yet another
definition (a sui generis definition) of “representative”: “the thing that elective government
is”.

But sui generis definitions of this type are tautological: “elective government is
‘representative’ because ‘representative’ has been defined to mean elective government”. We
could just as easily say that elective government is “yellow” or “smooth” or “hot” by
inserting the appropriate sui generis definitions into the dictionary.

So what is “democracy”?

Let’s put aside these modern Orwellian usages of “democracy” and consider it as a system of
government which involves some direct participation by the citizens in decision-making.

Democracy is any system by which citizens make joint decisions such that the rules
of the system itself are decided by and may be altered by those citizens without
privileging one over another.

We’ll return to that definition later.

In the meantime, what are the objections to direct decision-making?

People don’t want it

Peter Dutton writing in The Age (11 December 2017) claimed that voters don’t like having to
vote on issues.

6
The more subtle fallacy of “implied delegation” involves some consideration of game theory and is discussed
at Appendix II.

4
In fact, the very opposite would seem to be true. In their 2007 study, "Enraged or Engaged?
Preferences for Direct Citizen Participation in Affluent Democracies", Bowler, Donovan and
Karp found that in all countries they surveyed a plurality of respondents agreed or strongly
agreed with the proposition, "Referendums are a good way to decide important political
questions". In all but two countries an absolute majority agreed or strongly agreed. Approval
was highest in the country with most experience of referendums (i.e. Switzerland).

Moreover, historically where citizens have been given a free choice on their system of
government (e.g. Switzerland, some US states, German länder and many other places) they
have almost invariably voted for direct democracy to the greatest extent made available to
them.

Most tellingly, where citizens enjoy such democratic rights they do not vote to abolish them
(and very rarely to limit them) even though it’s a straightforward matter to call a referendum
for that purpose. In California, three such referendums have been called and either defeated
or withdrawn in the face of imminent defeat.

So if citizens being governed seem to like democracy, what’s the problem?

People are too stupid or uninformed

Next we have the argument that voters cannot understand the complex matters upon which
they may be asked to vote.

One of the more frightening responses to the Brexit plebiscite was the cry which went up
from the Remain camp that many Leave voters “weren’t even university educated!” One
wonders how a degree in pharmacology or architecture or media studies makes one’s
preferences on an essentially subjective matter like Brexit “better” than those of a hairdresser,
or a builder or a farmer. Especially when many notable people with tertiary degrees also
voted to Leave.

It’s worth remembering that the universal adult voting franchise – even for elective
government – is barely a century old. Historically it is a very recent phenomenon.

Most people nowadays pay lip service to the principle of democracy. But when we hear the
“not even university educated” slogan, we are reminded that we live amongst a hidden army
of Alexander Hamiltons: people convinced of their own Monopoly on Wisdom and just
waiting for the opportunity to put the “turbulent and changing mass of people” back in their
place where they belong.

In any event, the “uninformed” argument is both illogical and factually misleading.

It is illogical because – as the truly educated know - one simply cannot make an “Ought”
from an “Is”. Is and Ought are different categories. No amount of empirical evidence can
make one’s preferences positively “correct”. When people differ, they are usually differing
over values not evidence. Their interpretation of evidence adjusts to be consonant with their
values7.

7
An example of which is the experimentally demonstrated “induced compliance effect”

5
The uninformed argument is factually misleading because the very same accusation could be
levelled at backbench parliamentarians.

Parliamentarians simply don’t have the time – and often no inclination – to read and
understand each and every piece of legislation upon which they vote. They rely instead on
the Committee System. Individual politicians take an interest in specific areas of policy and
recommend to their party colleagues how to vote, recommendations which reflect not only
their assessment of evidence but the philosophy of their party.

Exactly the same is true of democracy. The Swiss Constitution, for example, obliges
Parliament to examine each popular initiative and recommend for or against it. The
government prepares a booklet setting out the arguments for and against each proposition8.
More importantly, each party does the same thing and their voting recommendations are
made available to the voters9 - just as they are to backbench politicians under purely elective
government.

Voters may simply vote as directed by their preferred party, reflecting both the party’s
analysis of the facts and its philosophy.

But voters are not obliged to follow the party line. Very few voters will find their preferences
everywhere and always reflected by one party. Sometimes all the parties – the “Political
Establishment” – may have objectives at odds with the majority of voters.

In Europe, the only two countries to be given a direct vote on the adoption of the Euro –
Denmark and Sweden – saw voters ignore the advice of both side of politics. They voted No
and stayed outside the debacle which soon engulfed the Eurozone. We might wonder if the
entire Eurozone disaster might have been avoided if democracy had been available
throughout Europe.

One of the reasons voters are currently disengaged from the political process – and therefore
informed – is that they feel their votes are essentially pointless. There is no incentive to
understand policy if one’s views will never be asked. We saw in the recent plebiscite that
when people are asked to vote on specific issues they are far more engaged.10

California

Then there is “dysfunctional” California. The supposed failure of democracy in California is


routinely cited as some sort of incontrovertible proof that citizens can’t be allowed a direct
say in government.

8
See for example: https://www.swissinfo.ch/eng/business/livretos-de-vota%C3%A7%C3%A3o_copy-of-
manual-ajuda-eleitor-su%C3%AD%C3%A7o-a-votar-em-plebiscito/41773098
9
See, for example, swissinfo’s coverage of the 24 September referendums and the published position of each
party: https://www.swissinfo.ch/eng/vote-september-24-2017_can-old-age-security-2020-guarantee-
pensions/43365192
10
There is a sweet irony here. The “stupid or uniformed argument” is itself an example of the very phenomenon
described above: interpreting evidence – in a misleading way – to make it consonant with the anti-democratic
values of those who employ it. It might be argued that such people are either a) ignorant of how governments
work or b) incapable of interpreting the evidence. Either way they would (by their own behaviour) be
disqualified (according to their own criterion) from being permitted to decide the matter!

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Now, some people may find this argument rather odd. Some wonder why opponents of
democracy should present as evidence a US state which enjoys not only the most prosperous
and creative economy in the world today but arguably the most prosperous and creative
economy in all of history.

California, along with the other directly democratic states of the western US, is a magnet for
the brightest people in the world. These are the people of the future who are literally
changing the world we live in. And they choose direct democracy.

If that’s “failure” perhaps we need more of it!

When opponents talk of California, they are usually alluding to the famous – or infamous –
Proposition 13 of 1978 which capped property taxes and imposed a two-thirds super-
majority requirement for passing the State budget. In the wake of the 2008 worldwide
financial crisis this did indeed contribute to a budget crisis in California.

But if we examine the 2008-2012 budget crisis carefully we find that things are not so
straightforward.

To begin with Proposition 13 itself was partly a problem of California’s success, success
which was achieved under a system of direct democracy (at the State level). As a State
within a federation it was unable to control the influx of internal migrants, and it was required
to provide services and infrastructure for them when they arrived. Long-time Californians
objected to what they saw as rising taxes to pay for the newcomers.

Moreover, citizens’ initiatives actually placed almost no limitation on the State’s principal
sources of revenue – income tax and sales tax – and earmarked only one third of spending,
most of which would have been appropriated anyway11.

The immediate cause of the 2008 budget crisis was the hyper-partisan State Legislature
which refused to agreed a budget by the required two-thirds supermajority. That
supermajority requirement was indeed implemented by citizens’ initiative. But the beauty of
democracy is its ability to recover and adapt.

Democracy was actually used to solve the Californian budget crisis in 2010. Proposition 25
(2010) removed the supermajority requirement for appropriations and required state
legislators to either pass the budget in a timely fashion12 or forfeit their pay. Budgets have
been passed on time every year since 2012.

Proposition 30 (2012) provided for a seven year increase in income tax rates for high income
earners and a four year increase in sales taxes13. Not all initiatives limit taxes.

11
See, for example, John Matsusaka, “A Case Study on Direct Democracy: Have Voter Initiatives Paralyzed the
California Budget?”, The Book of the States, Council of States Governments, 2010.
http://knowledgecenter.csg.org/drupal/system/files/Matsusaka.pdf
12
https://ballotpedia.org/California_Proposition_25,_Majority_Vote_for_Legislature_to_Pass_the_Budget_(201
0)
13
https://ballotpedia.org/California_Proposition_30,_Sales_and_Income_Tax_Increase_(2012)

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Democracy has also been used to improve elective government in other ways, especially by
overturning gerrymanders. Proposition 11 (2008) created an independent redistricting
commission14. Similar commissions have been created in other States where they can be
forced through democratically. And it has not been without opposition from the political
establishment. Arizona legislators – determined to hold on to their gerrymander – fought a
rearguard action in the Supreme Court to have that State’s referendum result struck down on
constitutional grounds15.

Other initiatives have sought to impose transparency on the legislative process. Proposition
54 (2016)16 requires the final draft of all bills to be published for 72 hours before a final vote.
This aims to limit last minute – and often opaque – logrolling and horse-trading and to
promote the “deliberative” role of legislatures that opponents of democracy so often claim to
support.

Nor do the other claims made against California’s democracy stand up to scrutiny.

One of the more common is the supposedly pernicious role of money in citizens initiatives.
In fact, while money may get a proposition onto the ballot paper in the first place there is
little evidence that it secures a favourable outcome in the final vote. For example, the
opponents of Proposition 56 (2016), which increased tobacco taxes, raised twice as much as
the campaign in favour. Nevertheless, the proposition was still approved by a majority of
64:36.17

In any event, the role of money in petition collection is a result not of democracy itself. The
democratic states have tried repeatedly over the years to regulate the payment of petition
collectors but their efforts have been thwarted by the thoroughly non-democratic US Supreme
Court which in the case of Meyer v. Grant (1988) struck down such regulations by invoking
its quirky constitutional doctrine that equates money to speech. Further limitations were
imposed by the Court in the case of Buckley v. American Constitutional Law Foundation, Inc.
(1999).

Finally, it is worth reiterating that California’s system of government is clearly not so


dysfunctional as to make the citizens want to change it. It is a straightforward matter to call a
referendum for that purpose. All previous attempts have been defeated.

Minarets

But what about the minarets? In 2009 Swiss voters voted to ban the construction of further
minarets. More generally, this type of objection is, “What about [X]?” where [X] is any
policy the speaker passionately opposes but the citizens have voted for.

The problem here is that if the criterion for assessing the acceptability of a system of
government is whether or not one personally agrees with every policy it produces, then

14
https://ballotpedia.org/California_Proposition_11,_Creation_of_the_California_Citizens_Redistricting_Comm
ission_(2008)
15
Arizona State Legislature v. Arizona Independent Redistricting Commission
16
https://ballotpedia.org/California_Proposition_54,_Public_Display_of_Legislative_Bills_Prior_to_Vote_(2016
)
17
https://ballotpedia.org/California_Proposition_56,_Tobacco_Tax_Increase_(2016)

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clearly the only system guaranteed to be acceptable would be an autocracy with oneself as the
autocrat.

Equally clearly, that’s not a sensible criterion. Do we condemn elective government because
we don’t like the budget deficit? Or because we oppose detention on Manus Island? Or
because it supports a ban on the wearing of face coverings?18 Or any other policy we happen
not to agree with. Opposing a specific policy is not an argument against a system of
government.

It is worth noting that the minarets initiative, like all Swiss initiatives, was required to
conform with Clause 3 of Article 139:

If an initiative does not respect the principle of unity of form, the principle of unity of
subject matter, or mandatory rules of international law, the Federal Parliament shall
declare the initiative invalid, in whole or in part.19

There were a number of appeals to the European Court of Human Rights but these were
rejected on the grounds that the applicants lacked standing20.

“Tyranny of the Majority”

The minarets case is one example of the more general issue of so-called “Tyranny of the
Majority”. What if people vote to make everyone paint their house yellow? What if people
insist on setting interest rates by popular vote? What if people start holding referendums to
judge criminal cases?

First, we may note that the more extreme examples are hypothetical. We do not actually see
them occurring in democratic states. The controversial issues are borderline cases, usually
cases which have become borderline as a result of social values evolving over time. In 2008
Californians voted narrowly to overturn the State Supreme Court’s ruling in favour of same-
sex marriage. Nine years later Australians voted overwhelmingly in favour of the same
policy.

Secondly, and more fundamentally, the opposite of so-called “Tyranny of the Majority” is
“Tyranny of Some Minority”. Mathematically, if the majority does not prevail on a binary
vote, then a minority must prevail against it.

But which minority? Mathematically, there is only one majority. But there’s a vast number
of possible minorities21.

We are all minorities. For example, those aged under 30 are a minority of younger people.
Those aged over 60 are a minority of older people. Those in between are a minority of those

18
Policies upheld by the European Court of Human Rights, for example in Dakir v. Belgium, 2017, Application
4619/12
19
Federal Constitution of the Swiss Confederation, Article 139, Clause 3.
20
Ouardiri v. Switzerland, 2011, Application 65840/09 and Ligue des Musulmans de Suisse and Others v.
Switzerland, 2011, Application 66274/09
21
An inconceivably vast number. See Appendix I for a calculation of the number of distinct minorities in even
a small population.

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in between. And that’s just one parameter. Do the minorities of poodle-lovers or train-
spotters or redheaded people, or murderers or paedophiles or psychopaths deserve special
treatment? And if so, what sort of special treatment?

It’s easy to talk in motherhood terms about protecting minorities. The practical problems
arise when it comes to deciding which of the vast number of minorities are to be protecting,
and to what extent.

Some people support the delegation of such decisions to a caste of Platonic Guardians,
usually lawyers dressed in sombre vestments and sitting in an appropriate temple, often built
of marble22. It is perhaps telling that such an approach is especially popular amongst lawyers
themselves, at least some of whom appear to fancy themselves for elevation to the
Priesthood.

But whilst the protection of minority rights through such constitutional mechanisms has wide
support, the history of such systems does not give cause for confidence. Many people are
able to cite Brown v. Board of Education of Topeka,1954 as the landmark case which
overturned the “separate but equal doctrine” authorising segregation. Far fewer are aware
that the Supreme Court was merely reversing a novel legal doctrine which it itself had
invented 58 years earlier in the case of Plessy v. Ferguson for the precise purpose of allowing
segregation. Only one judge dissented.

Nor do entrenched bills of rights show how one might resolve such oddities as Santa Clara
County v Southern Pacific Railroad Company, 1886 where judges decided that corporations
were people. Or Chicago Milwaukee and St Paul Railway Company v Minnesota, 1890 in
which they decided that those corporations could not have their monopoly profits regulated.

More recently, in Citizens United v. Federal Election Commission, 2010 the judges again
used their “money is speech” doctrine to protect wealthy minorities, including corporations,
from restrictions on their campaign donations.

Nevertheless the reconciliation of majority wishes and the protection of minorities remains
the most contentious aspect of directly democratic systems. Much of that difficulty may be
resolved by using directly democratic methods other than citizens’ initiative. But even
citizens’ initiative might be reconciled using the mechanism of ratification discussed below.

What about women

It is true that Swiss women did not get to vote in federal elections until 1971. And that is
indeed shocking. But it also has nothing to do with democracy. Any polity which denies the
vote to half its natural born citizens on the basis of their sex is either an androcracy (if the
men are ruling) or a gynaecocracy (if it’s the women). Switzerland did not become a
democracy until the referendum of 7th February 19712324

22
When the new US Supreme Court Building was opened in 1935, it was so magnificent one of the judges
suggested that perhaps they should “ride in on elephants”.
23
Half of the Swiss cantons introduced female suffrage on or before the 1971 federal referendum, and all but
one introduced it the following year. Due to legal uncertainty concerning the power of the Federal government
over the cantons, the half-canton Appenzell Ausserrhoden stood out until 1989 and half-canton Appenzell
Innerrhoden until 1990 when overruled by the Swiss Federal Supreme Court.

10
In 2010 Switzerland – as a democracy - became only the second country in the world – after
Finland – to have a majority female cabinet.

Eliminating adverse selection

Before leaving Switzerland it’s worth noting that most Swiss popular initiatives fail. In more
than a century only 23 popular initiatives have been enacted. But it’s precisely because
initiatives can be forcibly enacted if necessary that Swiss politicians usually act to resolve
issues through legislation before a referendum takes place.

This also has an effect on Swiss elective government. The seven person Swiss Cabinet
comprises members drawn from all the major political parties across the spectrum roughly in
proportion to number of their members in Parliament (the so-called “Magic Formula”). There
is no concept of “Government” and “Opposition”. A Swiss Minister may well be called upon
to administer a policy which is contrary to his or her party platform.

This unusual behaviour may be attributed at least in part to minimisation of the adverse
selection discussed earlier. Megalomaniacs do not seek the job because there is no scope for
them to rule over others. Any attempt to do so would be stopped in it tracks by the system of
initiative and referendum.

Why not just “consultative” referendums?

For many opponents of democracy, a fallback position is to propose “consultative”


referendums in which the voters get to have their say but the politicians are able to override
or ignore any “incorrect” decisions.

The problem with consultative referendums is that they’re almost always overridden or
ignored.

Non-binding citizens referendums were introduced in New Zealand 1993. Since then five
issues have reached the necessary threshold and all were “successful” in the sense of
achieving the vote (“Yes” or “No”) sought by those who proposed them .

In all cases the results have been ignored. For example, in the referendum of December 2013
voters opposed further asset sales by a majority of 67.3% to 32.4% on a turnout of 45%. The
Prime Minister simply ignored the results on the grounds that the earlier (2011) election had
given the government a “mandate” to proceed with the asset sales25.

In May 2005 the proposed European Constitution was embarrassingly voted down in
referendums held in the supposed EU heartland of France and the Netherlands. Proposed

24
Even the supposed Athenian democracy was in fact a landed androcracy which granted political participation
only to land-owning adult males, between 10% and 20% of the population. It has been estimated that
disenfranchised slaves alone made up to 30% of the population. Such slaves may be distinguished from resident
non-citizens of modern democracies like Switzerland. Unlike slaves, resident non-citizens arrive voluntarily
and (unless convicted of crime pursuant to uniformly applied laws) are free to leave at any time.
25
Wikipedia. New Zealand asset sales referendum, 2013.

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referendums in other countries were quickly cancelled (other than in Ireland where a
constitutionally entrenched citizens’ veto applies).

Despite its rejection by voters, the European Constitution was quickly re-cast and its essential
elements enacted as The Lisbon Treaty without further reference to voters other than in
Ireland26 .

Likewise, the unsuccessful plebiscites for directly elected mayors27 held in England and
Wales in May 2012 have been largely bypassed through the creation of “combined
authorities” which have elected mayors imposed by statute without a popular vote28.

Even the Eurozone plebiscites may be overturned in due course. In 2007 the Danish
government declared its intention to hold a second referendum. The Global Financial Crisis
and subsequent Eurozone crisis made the timing inopportune but it is hard to imagine that
there will not be further attempts. Likewise the major Swedish political parties still favour
joining the Eurozone and could do so simply by joining the European Exchange Rate
Mechanism (which would them make Eurozone membership compulsory after two years in
line with Sweden’s obligations under the Maastricht agreement).

At best, the supporters of “consultative” referendums are simply displaying lack of


understanding of the realpolitik of the elective political system and the determination of
adversely selected agents to get their own way. At worst, consultative referendums are a
confidence trick, part of the long tradition of “guided democracy” which seeks to trick people
into thinking they have some say in government whilst ensuring that real power is retained by
those who covet it.

Hitler!

Finally, no discussion of democracy would be complete without an invocation of “Godwin’s


Law”, blaming it for the rise of Hitler.

To put this persistent myth to rest it’s worth pointing out that the Nazi party came to power
not under a system of democracy but under a system of elective government. At no time did
the Nazis ever win more than 40% of the vote in a free election. Their share of votes actually
fell in the last free election held in November 1932. Even after seizing power, the Nazis
achieved only 43.9% of the popular vote in the rigged election of March 1933, and failed
even then to gain a majority of seats.

26
The Treaty was rejected by Irish voters in June 2008 and had to be re-drafted to include special exemptions
for Ireland and the amended version was approved in October 2009.
27
The move to directly elected mayors was in fact an anti-democratic change. Legislation under which they
operates requires a two-thirds majority of councillors to override mayoral proposal in critical areas. On the
other hand, elected mayors cannot be removed by council. Far from reducing the monopoly powers of the
mayoral executive, direct election combined with increased mayoral powers has accentuated the “elective
dictatorship” characteristics of local government and may be expected to cause the adverse selection of
individuals who place a high value on the exercise of power. Wikipedia. Powers of directly elected mayors in
England and Wales.
28
Cities which voted against directly elected mayors but which will have them imposed without popular
approval include Birmingham (now West Midlands Combined Authority), Manchester (now Greater
Manchester Combined Authority), Newcastle (now North-East Combined Authority), Nottingham (now North
Midlands Combined Authority) and Sheffield (now Sheffield City Region).

12
Hitler’s seizure of power was actually effected by establishment politicians relying primarily
on executive orders, not democracy29.

The critical Enabling Act which cemented Hitler’s position was passed not by popular vote
but by the Reichstag, and only after Reichstag President Göring had illegally waived the two-
thirds quorum requirement, needed because of the Communist members had been arrested
under Hindenburg’s Reichstag Fire Decree.

Had German constitutional amendments been subject to democratic referendum (as in


Australia) the fatal Enabling Act could never have been passed.

The Nazis did employ stage managed plebiscites30, retrospectively “ratifying” policies which
had already been adopted. The earliest – held on the 15th anniversary of the humiliating
Armistice - was for withdrawal from the League of Nations. There is little doubt it was
genuinely popular. On a turnout of 96% of voters, 95% approved withdrawal31.

The first plebiscite which addressed the issue of governance – combination of Chancellorship
and Presidency – did not take place until August 1934. This was more than a year after the
regime had seized power, more than a year after the Nazi Party had been declared the only
legal political party in Germany and opposition parties outlawed, and six weeks after the
assassination of many of Hitler’s political opponents. It occurred under conditions of state
terror.

Democracy and legitimacy

Notwithstanding evidence from elsewhere, it’s possible that Australians do actually prefer the
current system of government-by-politician.

We don’t know for sure because they’ve have never been asked.

We do know both from theory and evidence that voting in general elections does not
necessarily reflect policy preferences. Mathematically it cannot. There are many policies
and only one vote. A single vote cannot transmit that much information on policies.

For example, in 2016 commentators fell over themselves to point out the narrowness of the
majority in the Brexit plebiscite. What they all failed to note was that 87% of people had
voted against UKIP at the preceding general election. Whilst apparently agreeing with
UKIP's policy, the vast majority of voters were not prepared to elect it to government. Policy
preferences cannot be inferred from general election results.32

29
Amongst these were Hindenburg’s 1932 Preußenschlag Decree dissolving the government of the Free State of
Prussia (which covered more than half the German population), Hindenburg’s appointment of Hitler as
Chancellor, and Hindenburg’s Reichstag Fire Decree just days before the March election which waived habeas
corpus and allowed for the arrest of all Communist and many Social Democrat members of the Reichstag.
30
Withdrawal from League of Nations on 12 November, 1933, ratification of the combination of Chancellorship
and Presidency in 1934, retrospective approval for remilitarisation of the Rhineland in 1936, and retrospective
ratification of the Anschluss in 1938.
31
William Shirer’s account of Nazi Germany cites the fact that even in Dachau concentration camp 2,154 of
2,242 inmates voted in favour!
32
The Game Theory underlying this phenomenon is discussed in more detail at Appendix II.

13
Unlike Californians or Swiss or others who enjoy democracy, Australians have never had an
opportunity to vote freely on the system of government. The Federation Referendum offered
only two options: federating under elective government or remaining unfederated but still
under elective government. Politicians have steadfastly refused to give the Australian People
a free vote on other alternatives.

And this brings us to the most important aspect of democracy: not as a system of government
but as a means of choosing and legitimising the system of government. To use John Locke’s
famous expression, who else has the “Charter from Heaven” authorising them to decide the
system on behalf of everyone else?

So returning to our original definition:

Democracy is any system by which make joint decisions such that the rules of the
system itself are decided by and may be altered by those citizens without privileging
one over another.

And that necessarily requires some sort of constitutional initiative and referendum.

Article 51 of the Swiss Federal Constitution – the meta-constitution for the cantons – sums up
this principle as follows:

Each canton shall adopt a democratic constitution. This requires the approval of the
People and must be capable of being revised if the majority of those eligible to vote so
request.33

Methods of initiation and ratification

If given the opportunity to choose the system of government, would Australians choose full-
blown direct democracy with citizens’ initiative? Possibly. But not necessarily. There are
all sorts of models, both of initiation and ratification.

On initiation there is:

a) initiation solely by the legislature. This is the system of citizens’ veto. New legislation
may be initiated only by the legislature but some or all acts may be vetoed by a referendum
called by popular initiative. This is commonly used in the United States to ratify State
government bond issues;

b) initiation by states, cantons or municipalities. Article 141 of the Swiss Federal


Constitution allows any eight cantons to request a veto. In principle a directly democratic
system might also allow states, cantons or municipalities to initiate legislation or even
constitutional change, with ratification put to a direct vote;

c) initiation by one chamber of a bicameral legislature. The Australian Constitution was


possibly intended to include this mechanism. The vestiges can been seen in the peculiar

33
Swiss Federal Constitution, Article 51. Available online at https://www.admin.ch/ch/e/rs/1/101.en.pdf

14
wording of Section 128. However, the use of the word “may” instead of “shall” – possibly
accidental34 – rendered it inoperative;

d) initiation by a minority of parliamentarians. In principle, a threshold minority of


legislators could be empowered to have a matter put before the People for their final
adjudication thereby overcoming the problem of “elective dictatorship” which bedevils
Westminster systems; or

e) citizens’ initiative.

Likewise, there are different models of ratification:

a) simple majority;

b) double majority, often used in federal systems such as in Switzerland35 or in the double
majority specified in Section 128 of the Australian Constitution36;

c) super-majority, a majority of more than 50%; or

d) multiple ratification. For example, the US state of Nevada requires that initiatives to
amend the constitution be ratified at two successive elections37.

Multiple ratification may answer some of the objections raised about the Brexit plebiscite.
Did voters really know that the “Leave” vote was going to win? Or were they just taking the
opportunity to register their frustration at the unrepresentative system of government? Where
referendums are commonplace, voters have no need to register their frustration. They know
the risks of doing so. And if they do inadvertently vote for something they don’t really want
– or even if they just change their minds later – they can always reverse the decision with
another vote38.

Where – as in Britain – plebiscites are extremely uncommon and potentially irreversible,


multiple ratification may eliminate the danger of unintended consequences.

Multiple ratification and super-majorities may also go some way to reconciling the tension
between majority wishes and minority rights. We are left to wonder if the 2008 marriage
referendum in California would have survived a second ratification. The answer will never
be known.

34
See Jeffrey Goldsworthy, "A Role for the States in Initiating Referendums", in "Upholding the Australian
Constitution", Proceedings of the Samuel Griffith Society, Volume 8, pp125-137. Footnote 17.
http://samuelgriffith.org.au/docs/vol8/v8chap3.pdf The use of the word “may” in the relevant paragraph of
Section 128 renders it meaningless but was copied (late in the drafting process) from Section 57 together with
much of the other wording of Section 57 where the use of the word “may” makes sense.
35
Article 142 “Required Majorities” specifies a simple majority for proposals submitted to “the vote of the
People” (typically proposed vetoes of legislation already passed by parliament) but a double majority for
proposal submitted to “the vote of the People and the Cantons” (typically proposed constitutional amendments).
36
As a practical matter, Section 128 requires a double majority and it is possible that smaller States would not
approve any change which removed that requirement.
37
https://ballotpedia.org/History_of_Initiative_%26_Referendum_in_Nevada
38
As with the super-majority requirement in California.

15
Whatever system of government is used in Australia, to be considered democratic it would
need to be a system chosen freely by the citizens being governed.

That is the essence of Democracy.

(Last updated 28 October 2018. Appendix II added)

16
APPENDIX I

ON THE MATHEMATICS OF MINORITIES

The opposite of so-called “Tyranny of the Majority” is “Tyranny of Some Minority”.


Mathematically, if the majority does not prevail on a binary (“Yes/No”) vote, then some
minority must prevail against it.

But which minority? Majorities and minorities are not two sides of the same coin. They are
categorically different. Mathematically, in any decision there is only one majority. It is
readily identifiable. But there is a vast number of possible minorities.

We are all minorities. For example, those aged under 26 are a minority of younger people.
Those aged over 60 are a minority of older people. Those in between are a minority of those
in between. And that’s just one parameter. Does the minority of poodle-lovers or train-
spotters or redheaded people deserve special treatment?

Many people would be astonished to know just how many minorities there actually are.

For a population of 3 people there are clearly 3 minorities. For a population of 5 people there
are 15 distinct minority groupings, 10 minorities comprising 2 people1 each and another 5
comprising 1 person each.

If we confine ourselves just to consideration of “largest minorities” (those comprising half


the population less 1), for a population of 10 people the number rises to 210. For 20 people
there are 167,960 distinct minority groupings.

For a population of 170 (the largest number that can be readily handled by a typical personal
computer), the number of distinct minorities comprising 84 people each is 9 x 10 49. That’s 9
followed by 49 zeroes. To put that number in perspective, if politicians were to assess the
rights of each distinct minority grouping and give each one of them one second of
consideration, it would take about a million trillion trillion trillion times the age of the
Universe to complete the task.

And that’s just for 170 people! For Australia (population approximately 25 million) the
number of distinct largest minorities is 1 followed by 7.5 million zeroes.

Assessing small minorities is no easier. For Australia there are obviously 25 million
minorities of 1. That rises to about 300 trillion distinct minorities of 2 people each. For
minorities of 3 the number is 2.6 x 10 21. For those who remember their school chemistry,
that’s not far short of Avogadro’s Number. And from there it just gets worse and worse.

The claim that elective government protects the interests of minorities in general is not only
untrue; it is mathematically impossible. The Universe itself is not big enough to construct the
“effective procedure”2 necessary to evaluate the solution.

1
The number of distinct pairs drawn from a population of 5 is (5 x 4) / 2.
2
https://en.wikipedia.org/wiki/Effective_method
What elective government does do is protect the interests of the tiniest, infinitesimal fraction
of possible minorities. That infinitesimal fraction tends to be either a) the wealthy, or b)
well-organised interest groups or those with powerful patrons promoting their cause.

2
APPENDIX II

THE FALLACY OF IMPLIED CONSENT

In the discussion of “representative” democracy as a semantic fallacy, we considered the


possibility of representation as delegation and noted that in Australia – as in most countries –
there has never been a delegation. The People have never been given a choice between direct
democracy and elective government. The People have simply been told that the politicians
will enjoy a monopoly on legislative and executive power, and asked which team of
politicians they would prefer to exercise that monopoly.

The Fallacy of Implied Consent claims that the People have implicitly consented to delegated
authority by failing to take those actions which would implement genuine democracy. Such
actions might be to create and to vote for parties which proposed democracy. This has
happened at times in history – for example during the Progressive Era in the United States –
so it is clearly not impossible.

However, the use of the word “consent” to describe acquiescence is itself a semantic fallacy
which bears little relation to common meanings of the word. People have “consented” only if
we accept a sui generis definition of “consent” meaning the failure to overcome almost
insurmountable obstacles. In the same way, one might be said to “consent” to imprisonment
– or even capital punishment – by failing to escape from custody. Escapes have been known
to occur, sometimes against the most extraordinary odds. But that doesn’t mean everyone
sitting in prison “consents” to their incarceration. It doesn’t mean that everyone led to the
scaffold is actually committing suicide.

The obstacles which make nonsense of the word “consent” arise from four sources:

• Prisoners’ Dilemma;

• the manner of holding elections;

• Schelling Focal Points; and

• adverse selection.

The first obstacle lies in the formation of political parties committed to democracy. This is a
simple Prisoners’ Dilemma.

Even if a large number of voters desired the formation of such a party, each would rationally
conclude:

a) the formation of such a party would be worthwhile only if were of sufficient size and
strength to overthrow the entrenched parties which are heavily committed to
preventing democracy. That is an enormous undertaking requiring the commitment of
significant resources and a large number of people;
b) if I were to commit my time and resources to such a venture, and if insufficient others
did likewise, then I would have wasted my time and money, so my optimal strategy
would be to do nothing;

c) if sufficient others did undertake the formation of a large enough party, then my
individual contribution to such a huge undertaking would be both negligible and
unnecessary, so my optimal strategy would still be to do nothing; and

d) given that other rational players may be expected to arrive at conclusions (a) to (c) –
and therefore do nothing – my dominant strategy is therefore to do nothing.

Prisoners’ Dilemma is not a hurdle for established parties which are able to make credible
offers of future reward for those who help them, or credible threats of future punishment for
those who oppose them. Businesses, for example, may rationally donate money to a party –
even a party which is currently in opposition – if it can credibly promise to deliver on
rewards or punishments sometime in the future from a position of government. Established
parties can offer a plausible prospect of pre-selection – and then possible election – for those
loyal party members who give faithful service over the years.

The same is not true of minor parties. This is the first hurdle which must be overcome.

Nevertheless, despite this hurdle it may be observed that many parties – albeit small parties –
are actually formed, established by those whose passionate commitment (or irrationality) is
sufficient to make them spend time and resources on what may be a futile undertaking.

The next stage is to communicate the party’s existence to potential voters. This presents two
further hurdles:

• the manner in which elections are held; and

• the way in which media and political parties interact.

Political elections are characterised by:

• (except in the unusual circumstances of a by-election) simultaneous elections for all


positions in the Legislature; and

• in many cases, the simultaneous election of Legislative and Executive positions1.

Although usually taken for granted as the “normal” system of elections, this mechanism is
neither necessary nor ubiquitous. Corporate practice, for example, typically sees company
directors retire in rotation. Only one or two face re-election at each meeting and the electors
can focus on them individually2.

1
The Westminster system always combines the two. Systems with elected executive presidents may hold the
elections on the same day or on different days.
2
. And, of course, in a democratic country like Switzerland the voters go to the polls up to four times a year to
vote not just on specific candidates but on specific issues.

2
The effect of simultaneous elections is to congest communications channels between
candidates and potentials voters, as all communication is squeezed into the short period of the
election campaign and all candidates are seeking to use the same media channels.

This leads to the next hurdle, at which almost all small parties fall: the Schelling Focal Point3.

The Schelling Focal Point refers to a situation in which players in a game seek to coordinate
their actions (perhaps even unwittingly) in the absence of communication. The classic
example concerns two people who know they must somehow meet in New York City on a
certain day but are not able to communicate where or when. The most commonly proposed
solution to the problem is to meet at Grand Central Station at noon. Grand Central Station at
noon is not necessarily the best time and place for people to meet, but it is the most likely
time and place that one person would expect the other person to expect the first person to
think of.

The Schelling Focal Point becomes relevant to the political process when reporters are
seeking to focus their limited resources on reporting “newsworthy” events. But which events
are “newsworthy”? In the absence of other outstanding factors, events become newsworthy
if reporters in general consider them to be newsworthy. Each reporter is thus confronted with
a Schelling problem of trying to guess what other reporters would guess that other reporters
would imagine to be newsworthy.

In the political arena, established political parties are a clear focal point solution. In any
general election, all but the tiniest fraction of media coverage concerns the established
parties. This in turn allows the established parties to “control the narrative”: to determine the
election issues which will be regarded as important, to prevent discussion of issues they want
to avoid4, and to make it all but impossible for minor parties to get any coverage at all.

This effect is intensified by smaller parties’ lack of members and financial resources to
employ the sorts of direct marketing campaigns used by major parties.

For most small parties, voters are not even aware of their existence – let alone what they
stand for – until they see their name briefly on the ballot paper seconds before marking it.

With the exception of “high profile” candidates – who often gravitate to established parties to
maximise their chances of success – virtually the only way for an independent candidate or
minor party to circumvent the Schelling Focal Point is engage in such outrageous behaviour
that the media’s attention is briefly diverted onto them.

This goes some way to explaining why smaller parties often behave in this way. Examples in
Australia include politicians like Pauline Hanson, Fraser Anning, or even Bob Katter. In the
United Kingdom, Nicholas Farage courted controversy to maintain the focus of attention.

However, there is an invidious trade-off. Because elective government involves handing a


monopoly on power to the winner, many voters are not prepared to support such outrageous
candidates, even though they might agree with some of their individual policies.

3
https://en.wikipedia.org/wiki/Focal_point_(game_theory)
4
Again, the difference with democracy may be noted. Once an issue is on the ballot it will be voted on,
however much established parties might wish to suppress discussion of the topic.

3
This was demonstrated vividly in the Brexit plebiscite. While most commentators fell over
themselves to point out the narrowness of the majority in the Brexit referendum, they failed
to notice the more important result: that 87% of people had voted against UKIP at the
preceding general election. And that was UKIP’s best result ever. Whilst apparently agreeing
with UKIP’s signature policy, the vast majority of voters were not prepared to see it elected
to government.

Prisoners’ Dilemma, the manner of holding elections, and Schelling Focal Points destroy the
prospects of almost all single-issue parties. For pro-democracy parties, however, there is yet
another hurdle to overcome: adverse selection.

Despite all the barriers put in their way, minor parties do sometimes manage to grow and gain
a foothold in the political system. In the United Kingdom, the Labour Party managed to
supplant the Liberals as the main party of opposition to the Tories. In Australia, the
Australian Labor Party eventually managed to become one of the two major parties.

Even in a two-party system, there is often a significant third party, such as the Liberal
Democrats in the United Kingdom, or the Greens in Australia.

However, by the time parties have been around for long enough to get this close to exercising
real power, they have also been around long to be taken over by adversely selected agents
concerned more with exercising that power than with any thoughts of democratisation.

Again, this was vividly illustrated in the United Kingdom following the 2010 election when a
once-in-a-generation opportunity gave the Liberal Democrats the balance of power in the
House of Commons. The party had campaigned for decades to reform the first-past-the-post
voting system and introduce proportional representation. But when the opportunity finally
presented itself, party leader Nick Clegg threw it all away in return for the prospect of being
deputy Prime Minister for five years. He conceded to a referendum on single transferable
voting (“preferential voting”) which was roundly defeated as it offered little change from the
existing system.

Likewise in Australia, the Australian Labor Party in 1924 included in its General Platform a
“right of recall”, interpreted to be a form of citizens’ initiated veto of legislation5. However,
by 1963, having enjoyed the exercise of political power both federally and in various States,
the party quietly removed this commitment to democracy.

***

Anti-democratic arguments are full of ironies and the Fallacy of Implied Consent provides
one of the sweetest.

If opponents of democracy truly believe that voters prefer the system of elective government,
why do they not put the matter beyond all doubt by holding a referendum on the topic?
Surely they would relish the opportunity to be proved correct on such an important matter.
And – by their own admission – it is an absolute certainty that they would win such a vote.
Why the reluctance to be proved unequivocally right?

5
Anne Twomey, The Recall and Citizens’ Initiated Recall Elections Options for New South Wales, University
of Sydney, 4 September 2011, page 10. A proposal for recall of Members of Parliament was defeated in 1943.

4
More generally, a referendum question might take the form:

Do you support a review of the existing Constitution with the details of review to
determined by a subsequent series of initiatives and referendums?

If – as defenders of elective government maintain – voters prefer the current system over all
other options, then presumably they would vote No. Even if they did not, on any
subsequently proposed change they could vote No.

Why then do the opponents of democracy steadfastly resist giving voters the ability to choose
the form of government they prefer for their country?

For those who study the history of science, this brings to mind a famous debate between
Galileo and his inquisitors. Galileo had been accused – amongst other things – of claiming
there were moons orbiting Jupiter, contrary to elite dogma of the time. In frustration he is
said to have cried out, “If you would simply look through the telescope you would see the
moons of Jupiter!”

Completely unfazed, one of the cardinal replied, “I have no need to look through your
machine because I know there are no moons to be seen.”