[Elster, Jon (1992), On majoritarianism and rights, East European Constitutional Review [1 (3):19-?]
[This text was found on the Net, hence there are no page numbers and I cannot guarantee the correct reproduction of italics, paragraphs etc.]

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On Majoritarianism and Rights

Today, as in the 18th century, constitutions must protect individual rights from the excesses of democracy.

By Jon Elster

Recent developments in Eastern Europe and the former Soviet Union raise important concerns about majority rule and individual rights. In this region, majority rule is being adopted across the board. At the same time, individual rights have a precarious existence. To exaggerate somewhat, there has been a shift from the despotism of the Party to the despotism of the majority, both inimical to the protection of minority rights. Although there has been progress of a sort - since after all the Party did not care for the rights of the majority either - the achievements have been decidedly limited. In most countries, constitutional democracy is still in the future.

This story has several precedents. In England after 1648, in the United States after 1776, and in France after 1789, the abolition of a despotic regime gave rise to untrammeled majority rule, only to be followed some decades later by a regime subject to constitutional constraints. I shall not discuss the case of England, where the third stage took the form of a constitutional monarchy rather than a democracy, but shall focus instead on the French and the American experiences. In particular, I have found the debates at the Federal Convention in Philadelphia in 1787 and the Assemblée Constituante in Paris in 1789-91 very useful in illuminating the dangers of majority rule. We can use these historical precedents to delineate the range of majoritarian problems and counter-majoritarian solutions, and then to look at implications for Eastern Europe.

Arguments for majority rule

Social scientists have shown that majority voting is the only system of preference aggregation that satisfies the conditions of anonymity (the outcome should not depend on the naming of the preference holders), neutrality (the outcome should not depend on the naming of the alternatives), positive responsiveness (a condition related to that of Pareto optimality) and universal domain (the aggregation mechanism should work for all possible combinations of individual preferences). However, at a deeper level these conditions themselves are in need of justification.

How, for instance, can one argue for the condition of anonymity? There has never been a lack of groups claiming privileged status. The rich, landed property owners, the old, the educated, the intelligent, the nobility, members of the Aryan race or of other ethnic groups, believers of some given religion, and the male half of society have all claimed to be inherently superior to their complements. None of these groups will accept the condition of anonymity. A key to majority rule is found, however, in the very multiplicity of these privilege-claiming groups.

In the presence of many different groups competing on the basis of their innate quality, only quantity can emerge as a peaceful focal-point solution. Marx once observed that the only way to resolve the conflict between two royal pretenders is to have a republic. In the struggle over which tribe in ex-colonial countries is to impose its language as the official one, the only solution acceptable to all has often been to choose the language of the former colonial power.

Majority rule is similar to these formal, second-best solutions. Although people are not equal, they have to be treated as if they were. Now, what I just said does not amount to an argument for anonymity or, to use the more familiar word, equality. It yields at best an explanation of why the idea of equality was irresistible or, more precisely, why from a certain time onwards the only practical choice was between repression and equality. Among the various positive arguments for majority rule I shall limit myself to its close link to utilitarianism. If more people prefer x to y, then the choice of x is likely to yield more aggregate welfare than would be realized if y were chosen.

The link between majority rule and utilitarianism is confirmed by the fact that they have the same opponent: the defender of individual rights. There is a large literature on the relation between utility and rights. The relation between majority rule and individual rights - the topic of this article - has also been the topic of an extensive legal literature, though these two bodies of writing are rarely related to each other. In two closely parallel arguments, defenders of individual rights have argued that they trump, respectively, utility maximization and majority rule. To the greatest good for the greatest number and the rule of the many over the few, they oppose respect and concern for the individual. The connection between the two doctrines is undermined, however, if one reason why majority rule has to be constrained by rights is that the majority in the heat of passion may fail to perceive what is in its true interest. In that case, rights are needed to promote aggregate welfare, and majority rule becomes the enemy of utilitarianism rather than its natural ally. We shall see, however, that there are other reasons to fear majority rule that do not turn on this argument.

Dangers of majority rule

For the purposes of this paper, I shall not consider the inappropriately named "positive rights" that entitle the individual to have part of the social product spent on activities that directly enhance his material welfare, such as the right to work, to welfare, or to a clean environment.

Instead I shall limit myself to the traditional rights, such as civil liberties, political liberties, property rights and the freedom of contract. In particular, I consider majoritarian violations of political rights, of the rule of law, and of ethnic and religious rights.

First, a majority government will always be tempted to manipulate political rights to increase its chances of reelection. If it is free to change the timing of the election, for instance, it may choose a moment when economic conjunctures are favorable. And in countries with state- owned ratio and television, the government may give itself disproportionate time. In these and other cases the attack on rights comes from the majority in parliament, not from the majority in the population. In fact, the danger is precisely that the parliamentary majority may have means at its disposal to prevent the popular majority from putting a new government in place.

Second, a majority may set aside the rule of law under the sway of a standing interest or a momentary passion. This was, for instance, Madison's main worry: "In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger." This distinction between interest and passion is crucial. If the poor or relatively propertyless form a majority, their interest might induce them to enact laws that are contrary to the rights of property, by creating paper money, legislating debtor relief, and so on. A quite different danger arises if the majority is animated by a sudden passion that makes it deaf to the demands of the rule of law. The risk of passion-driven legislation being passed is especially great in wartime and other emergency situations, a famous case being the internment of Japanese-Americans during World War II. Third, a majority may set aside the rights of an ethnic or religious minority under the sway of what one might call a standing passion. In earlier centuries, religious fanaticism has been the mainspring of this form of majoritarian domination. Today, ethnic hatred, sometimes combined with religious differences, is proving a horribly potent source of oppression.

Two distinctions are implicit in what I have said. On the one hand, we have to determine whether the relevant majority is parliamentary or popular. On the other hand we have to identify the motives which move the members of the majority to infringe on the rights of the minority. Here I have discussed three cases: standing interests, standing passions and momentary passions. Although all six combinations of actors and motives might be relevant, I shall limit myself to five, all of which were recognized as threats to individual rights by the eighteenth-century constitution-makers.

First, there is the case of a parliamentary majority that acts to preserve itself as a majority, by the various procedural stratagems mentioned earlier, or to promote its other interests. Madison, for instance, noted that "It had often happened that men who had acquired landed property on credit, got into the Legislatures with a view of promoting an unjust protection agst. their Creditors." Second, there is the case of a parliamentary majority being swayed by the (standing) passion of amour-propre. Although virtually absent at the Federal Convention, the fear that political agents might act on such motives was often expressed at the Assemblée Constituante. Bergasse argued, for instance, that a suspensive veto for the king would not have the intended effect of making the assembly reconsider its vote, because its vanity would prevent it from backing down.

Third, there is the case of a popular majority acting (through its representatives) to further its economic interest. A special and important case is that in which this interest is defined in terms of present value of future income, discounted by some positive factor. If the discount rate is high, members of the majority might find it in their interest to take confiscatory measures against property- owners, even if they know that in the long run they or their descendants would be better off respecting property.

Fourth, there is the case of a popular majority acting (through its representatives) under a sudden impulse, a momentary passion. The founders in Philadelphia and the constituants in Paris constantly referred to this danger. In Philadelphia, we find references by Randolph to "the turbulence and follies of " and "the fury of democracy," by Hamilton to "the popular passions [which] spread like wild fire, and become irresistable," and by Madison to "fickleness and passion," and "the turbulency and violence of unruly passion." In Paris, Lally- Tollendal referred to the assembly being "swept away by eloquence, seduced by sophisms, led astray by intrigues, enflamed by passions they are made to share, carried away by the sudden movements communicated to them, arrested by the terrors inspired in them."

Fifth, there is the case of a popular majority acting (through its representatives) from a standing, permanent passion. A perusal of the quotations in the previous paragraph brings out the predominance of terms such as "sudden," "fickle," "unruly," and the like. By contrast, there were few references in the two eighteenth-century assemblies to more permanent passions and prejudices that might fashion the will of the majority. Yet in the late twentieth century, this may prove to be the outstanding danger of majority rule. In addition to the problems in Eastern Europe that I discuss below, the specter of Islamic majoritarianism in Algeria offers a striking example.

With these dangers in mind, we can survey the role in Eastern Europe of four countermajoritarian, rights-protecting devices: constitutional entrenchment of rights, judicial review, separation of powers and checks and balances. Constitutionalism

There are two relevant questions to be asked: what rights are included in the constitution, and how well does the constitution protect them? Concerning the first question, limitations of space prevent me from offering a full answer.

Instead, I shall simply point to some anomalies or other salient features, limiting myself to the countries that have completed the constitution-making process. Although all countries have constitutional provisions guaranteeing the rights of ethnic minorities, the force of this protection differs widely. The Bulgarian constitution offers by far the weakest protection. For one thing, it contains a ban on political parties formed along "ethnic, racial or religious lines" (Art.11.4). For another, the Bulgarian constitution is unique in that it offers to ethnic minorities only the right to study their own language (Art. 36.2) not the right to study all subjects in their own language. The Romanian constitution stands out in another respect, by a clause (Art. 6.2) which requires the protection of national minorities to "conform to the principles of equality and non-discrimination in relation to the other Romanian citizens." Presumably this excludes affirmative action for the purpose, say, of expanding educational opportunities for Gypsies.

In the constitutions of Croatia (Art. 18 of the Constitutional Law of Human Rights and Freedoms), Romania (Art. 59.2) and Slovenia (Art. 64), the political rights of minorities are protected by clauses ensuring their representation in parliament. (One might wonder, though, if the Romanian provision does not contradict Art. 6.2 of the constitution, mentioned above.) In Slovenia, Art. 80 requiring a two-thirds majority of all elected deputies for changes in the electoral law may also be seen as protecting political rights, by making it more difficult for the majority to manipulate the system to its advantage. Art. 71.3 of the Hungarian constitution similarly requires a two- thirds majority of the deputies present for the adoption of electoral laws. In none of the countries is the electoral law itself constitutionalized.

The difficulty of amending the constitution varies considerably. In Hungary, Poland and Croatia, the basic principle is that two-thirds of all deputies must vote in favor of a proposed amendment, but in each country there are some additional stipulations. In Croatia, constitutional amendments may also be adopted by simple majority vote in a referendum. The Hungarian constitution specifies that statutory legislation in a number of specific domains (e.g. electoral laws) also requires a two-thirds majority. The Polish constitution adds that the constitution may not be changed during a state of emergency. In Slovenia, an amendment is submitted to referendum if demanded by more than one-third of the deputies. For the proposal to pass, more than half of those eligible must vote, and more than half of those who vote must be in favor.

In Romania, there must either be a two-thirds majority in each chamber or a three-quarters majority in a joint session of the two chambers, followed by approval in a referendum. In addition, parliament can amend the constitution by a backdoor procedure to be discussed below. Here, too, the constitution cannot be changed in a state of emergency. In Bulgaria, the procedure is more complicated. A "minor" constitutional change can be adopted by parliament in one of two ways: if three-quarters of the deput ies vote for it in three ballots on three different days, or if two-thirds vote in favor on two occasions with an interval of no less than two and no more than five months. Major changes have to be approved by a two-thirds majority of a special constituent assembly, elections to which will take place if two-thirds of the deputies call for them. The most important "major" changes are those which modify "the form of state structure or form of government" or which call for a change in Article 57.1 of the co nstitution which asserts that "fundamental civil rights shall be irrevocable."

With the exception of the Bulgarian provisions for major constitutional changes, these systems offer a relatively weak protection against the impulses of passionate majorities.

The protection of rights may also be undermined, perhaps more seriously, by the fact that the relevant constitutional clauses are often circumscribed by clauses that render their import somewhat uncertain. On the one hand, there are many references to further regulation by statute, such as Art. 30.2 of the Bulgarian constitution, which says that "no one shall be detained or subjected to inspection, search or any other infringement of his personal inviolability, except on the conditions and in a manner established by a law." Although the Hungarian constitution contains similar clauses, their sting is drawn by Art. 8.2 which asserts that statutes "shall not limit the essential content of fundamental rights," leaving parliament free to expand the scope of rights but not to shrink them. On the other hand, many rights are limited by public or private interests. To take a typical example, Art. 37.2 of the Bulgarian constitution says that "freedom of conscience and religion shall not be practiced to the detriment of national security, public order, public health and morals." Whereas many constitutions assert that rights can be limited by the rights of others, Art. 57.2 of the Bulgarian constitution goes on to say that they shall not exercised to the detriment of the interests of others. Even if rights may under severely limited circumstances be trumped by the public interest, they themselves clearly must trump private interests if they are to have any force.

Judicial review

All countries in the region practice ex ante or ex post reviews of legislation by constitutional courts. This institution also existed in many of the Communist constitutions, with the special feature, however, that decisions by the court could be annulled by parliament. In Poland, this overruling mechanism still obtains, though the new draft Bill of Rights proposes to restrict it somewhat (see page 29). It is more surprising to see that it is also incorporated in the newly enacted constitution of Romania (Art. 145.1). This is the "backdoor" technique referred to above, by which the assembly may enact de facto amendments of the constitution without going to a referendum. One can imagine circumstances in which the rights-protecting function of judicial review would be undermined by this procedure.

However, one might also view it as part of a system of checks and balances, aimed at preventing an undemocratic rule by the judiciary. The Hungarian court has been by far the most active one. In the last few years it has emerged as a major political force, and has in fact been characterized as the most powerful constitutional court in the world. Two sets of decisions that have been especially important concern legal reactions to acts committed under the Communist regime. In three cases the court was asked to assess the constitutionality of laws regarding restitution of nationalized land to its pre-Communist owners. The court decided t hat the only reason for discriminating between former landowners and owners of other confiscated property or, more crucially, between former owners and "non-former owners," would be a forward-looking one. If such discrimination would facilitate the transition to a market economy or otherwise have good social results, it was allowable; if not, not. In particular, the pattern of former property holdings was irrelevant.

In a recent decision the court struck down as unconstitutional a law extending the statute of limitations for crimes committed during the old regime which, "for political reasons," had not been prosecuted. In the first set of decisions, the court let utilitarian considerations take precedence over backward-looking considerations of abstract justice, on the grounds that the latter did not give rise to any subjective rights to restitution. In the later decision, the basic premise of the court was the principle of legal security, which was violated both by the element of retroactivity inherent in the law and by the vagueness of the phrase "for political reasons." For more on the retroactivity decision, see EECR, Spring 1992, page 7, and EECR, Summer 1992, page 17.

The Bulgarian constitutional court has emerged as a (weak) defender of minority rights against illiberal provisions in the constitution. As an article in the last issue of the EECR described, on the basis of Art. 11.4 and Art. 44.2 of the constitution, deputies of the former Communist party asked that the Movement for Rights and Freedoms - the de facto party for the Turkish and Moslem minorities - be declared unconstitutional. Although six of twelve judges found in favor of the petition and only five were against (one was sick), the petition was rejected on the basis of Art. 151.1 in the constitution which requires "a majority of more than half of all justices" for a binding decision. The reasoning of the five judges was too tenuous and fragile, however, to provide a very solid guarantee.

Separation of powers

In spite of its extensive powers (or because of them), the Hungarian constitutional court has actively sought to limit its own jurisdiction. Although the law authorizes the court to issue advisory opinions, the court has on several occasions refused to do so on the grounds that this would violate the principle of the separation of powers. The task of the court, it has argued, must be the purely negative one of voiding unconstitutional laws, and it must never get involved in positive lawmaking. One might ask, however, whether the latter danger is not almost unavoidable in systems of ex ante review such as the Hungarian or German ones.

Much more serious than the infringement of the judiciary on the other powers of state is the opposite problem, namely the dependency of the judiciary on the executive. By all accounts, mental habits created under Communism still make judges, especially in lower courts, look to government for advice and guidance. Most of them are in fact incapable of independent application of the law, because of the abysmally low level of legal education and training under Communism.

Conversely, governmental habits of steering outcomes are slow in withering away. The former Hungarian Minister of Justice K‡lm‡n Kulcs‡r has described to me his difficulties in persuading his officials to refrain from interfering with the assignment of judges to cases.

Checks and balances

We can distinguish among a number of versions of the idea of checks and balances. The textbook idea is that there are three main institutions - the executive, the legislative and the judiciary - which must be organized so as to neutralize any tendency by any one of them to usurp power. However, in the two eighteenth-century assemblies, the three parties involved in checks and balances were rather the two houses of the legislature and the executive. Today's Eastern Europe differs from the textbook scheme in a different way - not in the division of the legislature into two houses, but in the bifurcation of the executive into president and government. If the president has some non-trivial powers, derived from the text of the constitution or from the legitimacy conferred by direct elections, and if the government has some independence from the parliamentary majority that brought it to power, we obtain a "new trinity" of checks and balances: parliament, government and president.

Such independence can be obtained by the German system of a constructive vote of no- confidence, requiring that parliament designate a new Prime Minister at the same time that it censures the government in place, or by the French system that allows the government to present bills that are automatically adopted as laws unless parliament brings a vote of no confidence within a specified time limit. Under these systems, government has the same relation to parliament as parliament has to the electorate: it is a trustee, not simply a delegate. The system with the fewest checks and balances is the Bulgarian one. There is a unicameral assembly, a very weak presidential veto (it can be overruled by a simple majority of all elected deputies) and no devices to ensure the independence of the government from the parliamentary majority. Institutionally, the constitutional court is the only counterweight to majoritarian assembly rule. De facto, a popular president may also be able to act as independent force.

Romania does not fare much better. Here the constitution has adopted a solution that was previously used only in Italy, with two essentially identical legislative chambers. It is hard to see how this device can result in a system of checks and balances. The adoption in Art. 113 of the French system of "governmental legislation" ensures some independence of government from parliament. Although the right of the president to call a referendum (Art. 90) might seem to offer him some independence from the other powers of state, the constitution does not state that the outcome of the referendum is binding. As noted above, the role of the constitutional court in acting as a brake on parliament is limited by the right of the assembly to overrule the decisions of the court.

Hungary has a unicameral assembly and a largely formal presidency. Although the rule of a constructive vote of no confidence (Art. 39a.1) ensures that government has some independence from parliament, the strongest constraint on the legislature is provided by the constitutional court.

Slovenia has a somewhat similar system: a second chamber that is essentially consultative, a presidency with few formal powers, the rule of a constructive vote of no-confidence and a potentially powerful constitutional court. Much the same applies to Croatia, except that there is no constructive vote of no-confidence, nor any other device to ensure the independence of government.

Poland is the country with the most extensive system of checks and balances, with an upper house and a president that both have the power to force the lower house to adopt laws with a two thirds majority. However, parliament is not bound by the decisions of the constitutional court. We should recall that these provisions are partly a legacy of the Communist constitution, and partly an outcome of transitional compromises.

Broadly speaking, this overview confirms the idea stated at the outset: despotism, when overthrown, gives rise to new forms of despotism. Among the countries I have surveyed, Romania and Bulgaria had the most despotic and totalitarian forms of Communist rule. These are also the countries that seem least inclined to embrace countermajoritarian devices. At the other extreme, the country that was least despotic - Hungary - is emerging as the one most strongly wedded to the principles of constitutionalism.

Earlier, I distinguished between dangers of majority rule arising from three sources: standing interests, standing passions and momentary passions. I also observed that these dangers can arise either in a parliamentary or in a popular majority. In Eastern Europe, the two most acute dangers arise from the standing interest of the parliamentary majority in preserving its power and from standing passions in the population, notably with regard to ethnic divisions and to backward-looking demands for restitution and retribution. Civil society is not yet sufficiently well-organized to give rise to well-defined interest groups that might threaten the rights of minority property-owners or creditors. Momentary passions are, almost by definition, unpredictable.

The emerging constitutional courts hold out the promise of being able to restrain standing and temporary passions. By contrast, the system of checks and balances is not, by and large, well designed to counteract self-interested legislators. As noted, this observation applies not only to ordinary legislation, but to the constitution-making process itself. In fact, the deepest flaw in the current political processes in Eastern Europe is the constant intermingling of la politique politisée and la politique politisante. Almost everywhere, constitutions have emerged as the outcome of bargaining for tactical or partisan purposes. Their clauses are viewed as policy instruments, not as a relatively fixed framework for policy. In a period of rapid economic and social transformation, this is not unambiguously a bad thing. But there is a price to be paid for flexibility, and someday the bill will come due.

[Elster, Jon (1992), On majoritarianism and rights, East European Constitutional Review [1 (3):19-?]

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