On the worth of aggregated lay opinion
whoooo26505 at yahoo.com
Thu Nov 9 18:27:46 PST 2006
A bit of a long thought ...
Hidden beneath all of these arguments is the question of what value aggregated lay opinion is for its truth. I would respectfully assert that those of you who subscribe to some version of populism -- be it through the legal ritual of voting, the taking of a poll or the love of constitutional fads -- have unfortunately placed too much faith in the metaphysics of democratic theory. You seem to think that deep within "the people" there is an a priori superiority in either viewpoint or legitimacy. This, of course, is as non-scientific as it is a constructed mythology of many western societies. Why is it that every aspect of the Court's epistemology is always being deconstructed and a standard of perfection always required for it -- while the hidden pitfalls of both the legislative and electoral rituals are treated as a necessary given?
The statistical concept at play here is the common denominator. The people who determine which side wins in most elections or polls are the most average of all the participants. This is because of the bell curve. This does not make the most common opinion necessarily more appealing. Populism's fallacy is that it transforms aggregated lay opinion into a kind of metaphysics (reification?). Just because one side wins in an election or poll doesn't make the winning side better than the loser; it only makes the victorious the hegemonic. (It could of course be evidence that one answer is better, but verification of the matter requires more than populism can provide, and hence democratic rituals are only evidence for other types of arguments).
The question reduces to this: of what value is majority pathology to the American political system (especially for courts)? In America the answer is that populism for its own sake is only good if it is accompanied by a sufficient blend of "non-democratic" paths (courts, Senates, committees, bureaus, interest groups, money, and liberty). In fact, majority pathology as a political force is specifically structured to compete with (and against) pluralistic forces (iron triangles, interest groups) and other elites (Senators with great seniority, committees, bureaus, justices).
What do you populists do with Aarow's impossibility theorem or other statistical arguments showing the fallacy of structures that aggregate lay opinion?
Why on earth one would interpret a vote on anything as being other than mere public mood or storm I cannot fathom. The elections and the weather are the same subject. Only in fairy tales does "the public" actually lead government. It's not supposed to lead; it's only supposed to be a component to a more complicated machine. You do no inherent injustice by ignoring populism in and of itself for its own sake.
So the final point is this: whether the Court should bow to Michigan's amendment is a function of whether doing so is legally required within the framework used to judge these things. This point is made neither stronger or weaker by appealing to populism as a metaphysical theory.
Dr. Sean Wilson, Esq.
Penn State University
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/
Curriculum Vitae: http://ludwig.squarespace.com/storage/wilsonvita%5B.pdf
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof